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.
One of the things I most admire about Archbishop Desmond Tutu is that he is an equal opportunities offender. A few years ago he offended then President Thabo Mbeki for saying that there was a lack of debate inside the ANC, given that it was verboten to talk about succession inside the ANC or to question the President’s views on any number of topics without expecting some serious, flame-throwing, nuclear slap-down in return. Mbeki then, as was his wont, wrote a rather sarcastic letter in response, which I would summarise (only somewhat in jest) as telling the Arch: “You know f#k-all, and I know everything”.
Now the former Truth and Reconciliation Commission (TRC) chairperson and Archbishop has caused another stir by dusting off a recommendation of the TRC which proposed the imposition of a “prosperity tax” to raise money for redress. Addressing an audience in Stellenbosch, the former Archbishop stated that white people should campaign for the imposition of such a tax as reconciliation gesture. He explained that although today’s white population was not necessarily directly involved in apartheid, they nevertheless derived benefits from an unjust system through opportunities, lifestyles and access to services. “South Africa is infamous as one of the worst examples of inequality between the rich and poor,” he said.
The FW de Klerk Foundation, doing what it does best, jumped to defend the economic interests of white people and shot down this idea. In doing so, it made statements that are so obviously wrong — as a matter of Constitutional Law – it made me wonder whether the Foundation is not being advised by the Chief State Law Advisor or by those clever lawyers who told the President that section 8(a) of the Judges’ Remuneration and Conditions of Employment Act is constitutional. The Foundation, predictably but depressingly, rejected the idea of a reparations tax imposed on white South Africans and then made the following quite astonishing set of claims:
One of the principles [on which the post-apartheid society is based] is non-racialism and the idea that we should no longer adopt laws that are aimed at one or another racial group. It would accordingly be unconstitutional to impose a wealth tax only on one of South Africa’s racial groups. It would require the reintroduction of racial classification and of many of the other demeaning racial distinctions that were associated with apartheid. It would also be unfair. Would whites who opposed apartheid be expected to pay the same as those who supported it? Would there be different tax scales for whites who supported the ANC, the DP and the old National Party? And what about the many blacks who held well-paid positions in homeland governments? To be constitutional, a wealth tax would have to be applied to all South Africans regardless of their race.
As any second year Constitutional Law student (as well as any regular reader of this Blog) knows, the statement on the unconstitutionality of a wealth tax imposed on white South Africans is pure nonsense. Maybe the folks at the FW de Klerk Foundation have been reading too many of Ken Owens’ letters in Business Day and forgot to read either the text of the Constitution or the applicable Constitutional Court judgment on affirmative action. If they had read section 9(2) of the Constitution as well as the judgment in Minister of Finance v Van Heerden they would surely have avoided embarrassing themselves by making false statements about South African (as opposed to American) Constitutional Law.
In that judgment the Constitutional Court, (in a judgment written by Deputy Chief Justice Dikgang Moseneke) held that equality is something that must still be achieved in South Africa and that section 9 of the Constitution places a duty on all organs of state “to protect and promote the achievement of equality” by implementing corrective measures that target groups disadvantaged by past discrimination. We cannot merely pretend we now live in a non-racial society and therefore ban all references to race in our law because if we do we will merely be entrenching white privilege — which is what the FW de Klerk Foundation’s position essentially boils down to.
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 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 the imposition of a once-off wealth tax on white South Africans to advance reconciliation and make token reparation for the wrongs of the past) is therefore not an exception to the general guarantee of equality or to a general endorsement of non-racialism. 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” and whether the measures “constitute an abuse of power or impose such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal [of the achievement of equality] would be threatened”.
In the Van Heerden case the Constitutional Court had to decide whether a Parliamentary pension scheme, which — for a period of five years — provided better benefits to parliamentarians who first joined parliament in 1994, was constitutionally valid. Mr Van Heerden, an old apartheid era parliamentarian, complained that the scheme discriminated against whites because the vast majority of new parliamentarians in 1994 were black and those who served before 1994 were mostly white. The court rejected this argument, pointing out that Mr Van Heerden was still going to be far better off in terms of his pension than any parliamentarian who entered parliament in 1994 for the first time.
One question was whether the affirmative action scheme might not comply with section 9(2) because some white people also first joined parliament in 1994 and was benefiting from the scheme. Moseneke stated that as long as the overwhelming majority of those targeted are from the disadvantaged group (or, by implication and conversely, as long as the overwhelming majority of those disadvantaged are from the former or continuing privileged group) the scheme would meet the criteria for a valid scheme. So while placing a wealth tax on all people earning a certain amount would be constitutionally valid, so would a tax only aimed at white South Africans who earned a certain amount every year.
A once-off wealth tax imposed on white South Africans who earn more than a certain amount as a small gesture towards reconciliation and redress would almost certainly pass the Van Heerden threshold because whether one supported apartheid or struggled against it, one invariably benefited from it if one is a white South African (whether born before or after 1994). If I had been born black and poor, I almost certainly would not have gone to University and I would almost certainly never have been a Law Professor at UCT, earning quite a nice salary, thank you.
This does not make me feel guilty, but it does make me feel humble and aware of the injustices of the past which I benefited from. It also spurs me on to do my small bit (no matter how small) for reconciliation and redress, not out of a misplaced sense of moral superiority (how can I be morally superior if I am just another human being with my own faults, petty and probably unexamined prejudices and any number of other foibles), but this is the only way I can make sense of living as a white person in this strange place in which our apartheid past lingers like a bad smell — despite all the denials of many who benefited from it.
The fact that some whites were too lazy or stupid to get rich during the days when affirmative action only benefited white people, is of course irrelevant for this argument. (Of course today we still get affirmative action for whites in the form of rules that require children to live in the area which serves as the feeding area of certain schools who happen to be well resourced and well run or the rules of schools which say that if one’s parents or siblings went to that school one would get special treatment in admission to that school.)
But not only is a wealth tax on white South Africans who earn a minimum amount of money constitutionally valid. It is also an important and welcome idea that must be supported by all right-thinking South Africans with even a smidgen of a conscience or common sense. (By saying this I am not claiming to be better than, or morally superior to, anyone else – I am merely suggesting that whether for reasons of conscience or for pragmatic reasons, it is the right thing to do.)
Why not impose such a tax of — say — 2% or 3% of one’s annual income for a period of a year or two and then divert that tax into a special fund, administered by a respected panel of experts with the brief of funding and administering projects that would begin to address the shockingly bad facilities at many government schools frequented by the poorest of our citizens — a state of affairs indisputable caused by apartheid.
How many school libraries could be built with that money? How many fully stocked laboratories could be built with that money? How many soccer fields and pavilions could be erected with that money? How many new computer labs with internet access could be provided to students who now can only dream of having access to computers and the internet? To avoid the argument, offered by some white people, that such a scheme would be a waste of money “because ‘they’ (always wondered who ‘they’ were and if ‘they’ included white businessmen who rake in obscene bonuses paid out of the profits made possible by exploiting workers) will only steal the money”, the money could be administered separately by a well-respected panel or independent institution, headed by Mamphele Ramphele, for example.
The problem is, of course, that some white people — out of shame or ignorance or maybe a bit of both — do not want to admit that white South Africans almost all benefited from apartheid vis-à-vis black South Africans. (I have always thought that many of those who attack me and charge that I am ashamed of being white, are projecting their own sense of suppressed racial shame onto me.)
Some benefited directly through affirmative action for whites which reserved most government and many private sector jobs for whites and boosted the education of white children by spending vastly disproportionate amounts of money on the education of white children. Others benefited indirectly, by living in a society where cheap black labour was always available to look after children and clean the toilets of even relatively poor whites or by being born white to parents who benefited from apartheid and could therefore provide a better life for their children.
Before we all accept this obvious fact, show a willingness to face up to it and begin to do something about it, and resist the temptation to want to sweep it all under the carpet because of embarrassment, misplaced anger or ignorance, we are never going to be able to embark on the true road to reconciliation. Insisting on reconciliation based on a denial of the past is not doing us any good. Such a “reconciliation” is no more than an attempt to rewrite the past in order to try and ensure that the laughable but very deeply entrenched notion so central to white identity — the idea of white moral superiority — remains intact.
I am dreaming of a world in which the notion of moral superiority based on race has no place. In this world — in which every human being has an inherent moral worth but (perhaps influenced here, against my will, by my Calvinist upbringing) where human beings are never perfect — making claims about the moral superiority OR inferiority of an individual based on their race is so absurd and immoral that anyone making such a claim, defending such a claim or implicitly relying on such an assumption has forfeited the right to be taken seriously. And in yours? Where are you going to stand in this war of ideas, my fellow white South Africans?BACK TO TOP