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.
Some journalists have predictably been up in arms (see here and here) about the event hosted on Friday by a the Black Journalist Forum where Mr Jacob Zuma, President of the ANC, dispensed some of his pearls of wisdom in secret exclusively to black journalists. White journalists who wanted to attend was barred from the event and claim that they were discriminated against in an unconstitutional manner.
My immediate gut feeling about this event was that it might not have been wise and might perhaps constitute unconstitutional racial discrimination – but I was not so sure of my case. This is because I supported the decision by the Commission on Gender Equality (CGE) that said found no problem with tow gay guest houses in Cape Town barring heterosexuals from staying there.
Was the Zuma event not perhaps covered by the principle of freedom of association, read with a substantive notion of equality? In the gay guest house saga, the CGE argued that because gay men have been discriminated in the past and because they still suffer ridicule and marginalisation, there was nothing wrong with creating a safe space where they could feel at home and that by excluding heterosexuals from the guest house there was no discrimination involved.
On reflection I continue to think that the Zuma event is deeply problematic. I have no objection with a group of black journalists forming a group to discuss their problems and to create a safe space for them to chat about their experiences. The Constitution guarantees their freedom of association and just like a group who decides only to invite white men to their wine tasting club to discuss the pro’s and con’s of the wine as well as the performance of the Super 14 Rugby teams, there is nothing in the Constitution to prohibit it.
The problem with the Black Journalist Forum is that they invited the ANC President to their meeting and then barred white journalists from the event. Because of their race they obtained an important benefit – a one on one chat with someone who might become South Africa’s President) – not available to white journalists who wanted to also chat to Mr Zuma to perhaps hear his views on important matters such as the benefits of showering with Olive Oil and garlic soap.
Such an exclusive event that bars white journalists sends a signal that black journalists will get access to Mr Zuma merely because they are black and that white journalists do not count at all and are really irrelevant. This is deeply hurtful to white journalists and, I would contend, affects their human dignity.
It also undermines the principle of openness and accountability that is part of democracy and is safeguarded in section 1 of the Constitution. A politician should not go to a closed meeting where only members of one racial group are allwoed in to give them a benefit denied members of another race.
Taken together, these considerations can only lead to the conclusion that the event was not only politically unwise but probably also unconstitutional. This is different from the gay guest house case because no heterosexual is denied an important benefit or any political influence because he or she is denied access to the guest house. All the heterosexual is denied is the opportunity to be fabulous!
For the same reason a wine appreciation club could decide not to invite black members to their events because their discussions may have no bearing on the future of the country and the right to freedom of associuation in such a case would trump the right to equality.
Of course, in a case where the members of the wine appreciation society are all working for the same company and where work matters are discussed at this wine tasting event, it would be a completely different matter. If black colleagues are not invited in such a case they would be denied an important benefit that could get them ahead in their careers, perhaps, and the wine society would have difficulty justifying its racist policy to any court.
Equality and non-discrimination jurisprudence in South Africa is complex because it tries to take account of the context within which distinction based on race are made. This means that many white people who respond in a knee-jerk manner to any distinction based on race and shout about discrimination, often get it wrong.
Not all distinctions based on race constitute unfair discrimination because context matters. That is why a Black Lawyers Association would be constitutionally valid while a White Lawyers Association might well not be. But where democracy itself is being subverted and where important benefits are given to journalists based on their race, I cannot see any justification for it.
Mr Zuma and those who organised this event should hang their heads in shame.BACK TO TOP