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
It’s the experience of opression, stupid
The affirmative action debate continues apace in the pages of the
I think Van Vuuren’s letter forcefully illustrates why we still need affirmative action in this country. Like Professor David Benatar and others who criticized my contribution to the affirmative action debate, he seems unwilling or incapable of grasping the fundamental point I tried to make. This inability, I think, reveals his blindness to the unfairness of “neutral” standards and criteria.
No, I am not saying that “when it comes to affirmative action, whiteys can’t think straight”. My argument is really a critique of the worst aspects of a kind of “universal liberalism” and is based on an understanding of how power works in any institution dominated by an economically, culturally and politically powerful group.
I am contending that the selection of candidates for any position or benefit must be based on a set of criteria. This set of criteria is not neutral, but is the product of (and therefore reflects) the values of the dominant group. In
Because the set of criteria is the product of the dominant group, the dominant group finds it difficult if not impossible to understand that the criteria are not neutral and that it would not be fair to use those criteria to appoint individuals or distribute benefits. I suspect that is the reason why Professors Van Vuuren and Benatar cannot understand why applying such criteria are problematic and essentially deeply unfair.
When applying a set of criteria that reflects the values of the powerful and dominant group in an institution still dominated by that very group, those who do not fit in – blacks, women, homosexuals – will either not be allowed in or will be treated as second class colleagues.
This point is surely not very difficult to grasp and for anyone with even a passing acquaintance with continental philosophy of the last hundred years, it should be uncontroversial. But they do not have to take my word for it – they can merely ask any black person appointed to a senior position in an institution dominated by whites and she will confirm this view. Come to think of it, they could also ask any openly gay law professor at an institution dominated by heterosexual men.
The
At first blush, this seems like a good argument. Surely we all want to get to a point where we live in a society in which race is not all-important. However, I think this view is flawed because it does not take cognizance of the fact that black people are not targeted for affirmative action because they are all essentially the same. (The essence of apartheid was exactly to essentialise race and to equate race with destiny.)
No, black people’s skin colour is not why they are targeted for affirmative action. Instead, they are targeted because they have all experienced the hurt and ignominy of racial prejudice and oppression and all still experience it today. We live in a racist world and even when a black person speaks perfect English or earns 10 million Rand a year, the chances are that the waiter will give the wine list to the white person at the table.
To say that race should not be used in programmes to address past injustice is to deny black people their own (and continuing) experience of oppression. This denial of other’s experience only seems logical and fair if one considers one’s own experience as universal, something that is only possible if one is a confirmed member of the privileged and dominant group.
That some still see their own experience as universal is exactly why affirmative action based on race is essential to create a world that will be a little bit more fair and just.
