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.
For many years I drove to work every morning from my apartment in Bantry Bay to my office at the University of Western Cape Law Faculty in Bellville, crossing the invisible border separating the upper-middle class (predominantly white) suburbs of Cape Town from the (predominantly black and coloured) working class and impoverished suburbs of the city. The contrast between these two worlds, as one would expect from a city that remains deeply scarred by forced removals and apartheid town planning, is stark.
Getting into my car, the early morning pedestrians would catch my eye. Quite a number of neatly dressed black women, clutching big patent leather bags, would wander up the hill from the taxi drop-off point at the circle near Spar, on their way to do domestic work to help pay for school fees, feed their families and buy the small necessities of life. I would also spot a number of live-in domestic workers in crisp white uniforms taking the dogs or babies of their employers for a walk, while the odd (mostly white) jogger trying to get rid of those extra pounds around the hips or the cyclists training for The Argus cycle tour would go by at various speeds.
And then there was the gentleman who must have retired years ago, who could often be spotted ambling down to the beach at Saunders Rock, his poodle tightly held on a leash, his lively eyes darting to and fro in search of entertainment. For a while his entertainment must surely have included the beautiful young man dressed in loose-fitting tracksuit pants and colourful designer shirt, briskly walking back from the Spar with The Sowetan clutched under his arm and a gay spring in his step.
I would drive past the Sea Point swimming pool and the promenade, marvelling at the waves rolling in from Robben Island on my left and the names of the art deco apartment blocks on my right: Knightsbridge, Vredefort, Blue Waters … and the ominously named Twin Towers. My car would speed past the Waterfront and on to the N2 highway, where the upper-middle class neighbourhoods give way to the Joe Slovo informal settlement, with its densely packed corrugated iron structures and the tangled mess of electricity wires sprouting from short pylons, reminding me, somehow, of Albert Einstein’s famous hairdo.
Then I would turn off the highway onto Modderdam Road, drive past the Cape Town International Airport on the right; dilapidated graffiti-covered apartment blocks housing mostly working class coloured families on the left. BMW’s and Mercedes Benzes would flash by the odd donkey car carrying a burnt out body of a car on the wooden buggy, as an SAA jet would dip and come in to land. Finally I would arrive at the gates of the University with its rolling green lawns, big trees and its mixture of face brick apartheid style architecture and modern glass and steel structures.
In just half an hour my travels would have confronted me with vastly different worlds, leaving me with the surface impression that I was living in more than one country (or perhaps more than one continent) at the same time.
These thoughts came flooding in as I read about the Department of Arts and Culture’s recent Social Cohesion Summit and as I perused the document prepared by the Presidency on Social Cohesion and Social Justice. For democrats and constitutionalists, the notion of social cohesion will not be without its difficulties.
On the one hand, it must be obvious that a society in which vast social and economic inequality (inequality measured both in terms of unequal access to material goods and services and unequal access to social capital and status due to one’s race, sex, gender, sexual orientation or other identity category) persists and continues to be perpetuated by government policies and private sector practices, will find it difficult to thrive economically and culturally. A society in which a resident of Bantry Bay and a resident of Joe Slovo are unlikely to have any prospect of ever forming a relationship based on shared interests and values; in which their children are unlikely ever to attend the same school or even receive remotely the same quality education or level of health care; in which the latter remains invisible to the former except as a domestic worker or an employee without a surname or a private life; will remain a sick society in which the individual talents of all will not flourish.
On the other hand, the notion of social cohesion is often conflated with the far more problematic, inherently undemocratic, even oppressive notion of “unity”. Some who climb on the social cohesion bandwagon argue that what is needed in South Africa is for all citizens to demonstrate unity, by which they seem to mean that we should all agree on all the most important things. Unity could mean no more than that we all support Bafana Bafana and the Springboks and that we love our flag and our anthem (even those strange bits about … die blou van ons se hemel.)
But it can also mean that we should all support and defend the politicians who serve in government, that we should not criticise the government of the day or the party who happens to have won the last election in our Province or nationally. (Even worse, it can mean that we are expected never to criticise any of the policies, stuff ups or venal and corrupt actions of those who pretend to serve the masses of our people while stuffing their pockets from the public purse or those who self-righteously claim that they are moaning and groaning about how everything in South Africa is going to the dogs in defence of democracy.)
This kind of “unity” has little to do with the notion of social cohesion which is aimed at breaking down the race and class prejudices as well as the social and economic barriers that prevent us from forming real relationships with those with whom we might find we have things in common (a love of Rugby or Jazz, a passion for education or art, a fear of crime and a disgust with corruption). Instead, it has everything to do with the self-serving promotion of a kind of uniformity that would force us to suppress our differences in order to turn us into passive citizens who will not make trouble for the powers that be on those occasions when it is in fact our duty as active citizens to make trouble for those in power.
As I have written before, in a democracy we need to celebrate our differences, not suppress them. But in doing so, the danger is that we will retreat from the public space or hide behind chauvinistic ethnic or racial identities to claim our little bit of the social and economic pie, not as citizens who happen to be different from each other while we also potentially have much in common, but as “Afrikaners” or “minorities”, or Zulu’s or Xhosa’s.
A notion of social cohesion that allows us to celebrate our differences without fetishizing them and without hiding behind these differences so that we do not have to relate at all to those who are not exactly like us, is what is required.
This kind of cohesion is a far cry from the notion of “unity” often bandied about by self-serving politicians who are trying to rustle up blind support for themselves and their parties.BACK TO TOP