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.
Published: 2011/06/27 07:22:48 AM
I am surprised that an old liberal like Ken Owen (Hitler’s policy at UCT, Letters, June 24) is undermining our constitution and is indirectly advocating that universities flout the law and the constitution. I always thought liberals supported upholding the constitution and the rule of law.
The Constitutional Court, in the case of Minister of Finance v Van Heerden (in a judgment written by Deputy Chief Justice Dikgang Moseneke), held that equality is something that must still be achieved in SA and that section 9 of the constitution places a duty on all organs of state — which include universities such as the University of Cape Town (UCT) — “to protect and promote the achievement of equality” by implementing corrective measures that target groups disadvantaged by past discrimination.
The court pointed out that “when our constitution took root a decade ago, our society was deeply divided, vastly unequal and uncaring of human worth”. Many of these “stark social and economic disparities” (much of it linked to a person’s race) will persist for a long time to come. According to the Constitutional Court, corrective measures which target specific race groups are therefore constitutionally valid and in many cases even constitutionally required in order to “start a credible and abiding process of reparation for past exclusion, dispossession, and indignity within the discipline of our constitutional framework”.
The implementation of race- based measures (like those used at UCT) is therefore not an exception to the general guarantee of equality. Such measures are not “reverse discrimination” or “positive discrimination” but are rather “integral to the reach of our equality protection”.
For race-based corrective measures to comply with the constitution, one must ask whether “an overwhelming majority of members of the favoured class are persons designated as disadvantaged by unfair exclusion”.
Mr Owen might argue that some black South Africans have done rather well in economic terms over the past 18 years and should therefore not benefit from corrective measures. This argument is constitutionally irrelevant as the “overwhelming majority” of black South Africans continue to suffer from the effects of past and ongoing racial discrimination. And even those who have benefited economically are not free from the effects of racism.
Mr Owen’s views on this issue are therefore in conflict with the constitution and his criticism of UCT’s admissions policy constitutes a stark and dangerous attack on our constitution and on respect for the rule of law.
If he disagrees with the constitution in this respect, Mr Owen is of course free to advocate for a change in the constitution.
But I would argue that this would be a problematic route to take. One should be careful before promoting wholesale changes to our constitution as this document embodies a solemn pact that should only be amended in the most extreme cases. After all, if the equality clause is amended now, why would some not be tempted to change the clauses that guarantee respect for freedom of expression and the protection of property rights?
Pierre de Vos
Claude Leon Foundation chair in constitutional governance, department of public law, UCT