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.
I am sure there are some readers who are hoping that I will have a go at a certain fugitive from justice (and currently a special advisor to the Minister of Defence) who, in his familiar ad hominem style (he even cribbed from me and used the word “gangster!), launched an attack on Minister Trevor Manuel in an open letter published in several Sunday newspapers this weekend. But engaging logically and reasonably with Mr Paul Ngobeni is like trying to discuss the finer points of Friedrich Nietzsche’s concept of “The Will to Power” with someone blowing a Vuvuzela at the top of his or her lungs.
So I will give it a pass – apart, perhaps, from noting that people like Trevor Manuel must now regret their lack of courage and principle in not standing up to Ngobeni and others when they launched their vitriolic attacks on those of us who insisted that the Judicial Service Commission (JSC) investigate the serious allegations of gross misconduct against Judge President John Hlophe – speaking of chickens coming home to roost! I am tempted to ask Manuel: “Where were you during the war about the possible impeachment of John Hlophe, Trevor?”
I would like to take a slightly broader view, as it seems that the truth has been the first casualty of this “debate” sparked by the proposed amendments to the Employment Equity Act and the year old utterances of chief government spokesperson Jimmy Manyi.
The African National Congress (ANC) distanced itself from views expressed by Manyi. It issued a statement which made the following claim:
We want to categorically put on record that the remarks made by Manyi neither represent ANC nor Government policy. Based on the Freedom Charter, which espouses non-racialism as a guiding principle the ANC, together with all our people, including the coloured community, has fought for the liberation of all South Africans to live freely wherever they desire in the country. Any narrow view that coloured people are in “over supply in the Western Cape” and should, therefore, move to other parts of the country to realise their dreams of a better life, is not in keeping with the rights of all South Africans, including coloured people.
This statement does not seem to conform to the facts. At present several government departments (including the South African Police Service and the Department of Correctional Services) use national demographics in its employment equity plans. This means that Manyi’s statement – while framed in a particularly obnoxious manner – represents the policy on employment equity used by the government itself.
If one is a middle-ranked officer in the Police or in the Department of Correctional Services and if one is assumed to be “coloured” and live and work in the Western Cape, one will probably not be promoted unless one is prepared to go and work in a province where there is “not an oversupply of coloureds”. This is a fact that is not addressed by either the ANC or by Trevor Manuel.
Now, an honest response from the ANC would have required it to say that while Manyi had spoken in a rather crude and racially provocative manner and had therefore hampered the electoral chances of the ANC in the Western Cape, his statement, in essence, did reflect the ANC government policy on employment equity. It would have required the ANC to defend the existing employment equity policy of government departments, which is aimed – at least partly – at correcting the “employment imbalances” in favour of “coloureds'” and “whites” in the Western Cape and is also designed to target the continued discrimination against “africans” in the Western Cape labour market.
Such an honest response from the ANC would have allowed for a serious debate about the aims of employment equity and the use of apartheid era race categories in achieving those aims. It would also have opened up the space to discuss the ethical, economic and political calculations behind the specific view of employment equity embraced by the ANC government.
It would have allowed some of us to ask whether people like Manyi and Malema are not merely parasites of transformation (as Nic Boraine argues) who are “emphasising and nurturing an exclusive African racial identity because it benefits their imperative to extract a rent out of the economy”. This might have allowed for a deeper reflection on how we can address the very real need for racial redress without empowering the opportunistic “parasites of transformation” who are abusing the concept for personal enrichment and advancement.
Unfortunately the ANC was too cowardly and dishonest to defend its policy or to admit that it is open to abuse by unscrupulous and greedy racial nationalists. One understands why the ANC has shied away from such a debate. While it is on the moral high ground when it argues for the absolute necessity of racial redress in employment and other contexts, it might have been difficult for the ANC to have to admit that other factors – apart from the very real and important need for racial redress – play a role in its stance on employment equity. It would have had to argue that it was essential for the ANC to embrace the particular manifestation of affirmative action in order to ensure its continued electoral dominance and the support of the emerging black middle class.
Now they are running away from the argument, ceding the ground to those who do not only oppose the “parasites of transformation”, but also to those who oppose any kind of transformation whatsoever. This, it seems to me, represents a moral failure on the part of the ANC. The ANC needs to defend the imperatives of transformation and needs to put forward cogent and reasoned arguments for why its particular brand of employment equity is a moral and practical necessity. If it fails to do so, the likes of Solidarity and Afriforum will win the argument by default. If one believes that affirmative action is a moral necessity (as I happen to do), then one needs to say so and provide reasons for that view.
Which brings me to the open letter written by Minister Trevor Manuel. Although it was satisfying to read the attack by Manuel on Manyi, the satisfaction did not last. Reading that letter was a bit like eating a koeksister (as opposed to a koesister) – it was sweet and delicious at first, but left one with a sickly aftertaste.
The problem is that there is a fundamental dishonesty at the heart of the letter. Manuel has been part of the government since 1994. He has endorsed cabinet decisions – including a decision to use national demographics when enforcing government employment equity targets and a decision to support the amendments to the Employment Equity Act. It is a bit rich that Minister Manuel is now finally expressing his dismay at Manyi when Manyi was merely articulating government policy approved by the cabinet of which Manuel is a member.
In writing the letter, Manuel has also failed to respect the principle of collective cabinet responsibility. In his letter he wrote:
Now, in the light of the utterances you made when you were the DG of the Department of Labour, and given the fact that the amendments to the Employment Equity Act were drafted during your tenure, I have a sense that your racism has infiltrated the highest echelons of government. Count me among those who, in spite of my position, will ensure that parliament acts in the letter and spirit of our constitution when it adopts amendments to the act.
Well, those amendments were approved by the cabinet of which Manuel is a very senior member. If he had argued against the amendments in cabinet and his arguments were defeated, he had two options open to him. He could either have resigned in protest – which would have made him that rare thing: a principled politician – or he could have chosen to observe the principle of collective cabinet responsibility which would have required him to say nothing in public.
As a cabinet minister in a Westminster system one cannot pick and choose which policies endorsed by the cabinet one wishes to support and which ones one wishes to oppose in public. Once cabinet has spoken, one has a constitutional duty to abide by the decision of cabinet. If one cannot live with a decision by cabinet – as Manuel suggests is the case regarding the amendments to the Employment Equity Act – one has a duty to resign.
But of course if one resigns one loses much of one’s power and status as well as the perks that go with a cabinet appointment. No wonder Manuel chose the easier but morally less admirable way of dealing with the issue.BACK TO TOP