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.
“Ag nee man, there is no code for that,” the woman who had to sign off on my registration form told me on the day when I had to register for my third year LLB studies at Stellenbosch University in the late nineteen eighties.
I had insisted that I wanted the form changed. I was no longer a member of the NG Kerk. Instead I wanted the form to reflect that I am an atheist. The woman looked appalled. I suspected that in her eyes being an atheist was almost as bad as being a kommunis or some other kind of landsverraaier. I might as well have told her I was an ANC supporter.
“But there is no code for atheist,” she insisted. “Choose something else.”
“So you want me to lie?”
She hesitated. Lying was not approved of. It was up there with being an atheist or a landsveraaiende kommunis.
“Why don’t we just write ‘atheist’ on the form instead of writing in the code?” I suggested.
She shook her head firmly. “That is against the rules. Can’t we just write in the code for NG Kerk?”
“No, the NG Kerk supports Apartheid. I can’t be associated with them,” I said in the self-righteous and pleased-with-myself tone that comes easy to a 22-year-old white student whose head was spinning with new ideas.
“I will make a plan,” she said, primly pursing her lips.
When the registration letter came back I saw that I had been turned into a Christian Scientist. Probably the closest the woman could get to an atheist.
I was reminded of this minor, vaguely amusing, incident while reading the leaked Task Team Report into initiation practices at North West University. (The full Report can now be accessed here.)
At the time when I was studying at Stellenbosch University, the authoritarian, racist, homophobic culture (profoundly antagonistic towards those who did not fit in), was deeply alienating to those who dared to be different from the deeply embedded norm.
I mean, the University even threatened to expel all those of us who took part in a protest march to demand an end to residential Apartheid in University residences. At that march students from various residences threatened to physically attack marchers for daring to state a view that contradicted official National Party policy.
I know too well that one of the ways in which this kind of conformity was imposed was through a violent, degrading, semi-militaristic initiation programme aimed at humiliating first year students and then assimilating them into the koshuis culture.
Apparently (and quite remarkably) much the same thing continues to this day in residences on the Potchefstroom campus of NWU. While NWU claim to abhor this culture and while its rules officially prohibit it, it has turned a blind eye to it in a cynical move to placate alumni while pretending to obey the law.
Thus the NWU Council attempted to suppress large parts of the most recent Independent Report. (This Report made many of the same findings than several pervious reports, which were never acted upon, as the culture of initiation continues at the University.)
The NWU Council presumably tried to suppress the most recent Report because it yet again contains damning findings about the anti-intellectual institutional culture of intimidation and censorship at the Potchefstroom campus and of the prevalence of racism and formal and informal racial discrimination on that campus.
The Report finds that there is an atmosphere of fear and victimisation on the Potchefstroom campus, that many academics who challenged the non-existent transformation of that campus were hounded out of the University through the use of disciplinary and other mechanisms, and that many students and staff were fearful when they spoke to the task team.
According to the Report, “independent thought is often dismissed as disloyal” by those in leadership positions at the University.
As the Report wryly comments: “It cannot be right that taxpayers’ money is spent towards suppressing freedom of expression” on a University campus. How anyone could get even the semblance of a quality education in such an authoritarian atmosphere is beyond me.
The task team also found that on the Potchefstroom campus a tacit quota system applies to University residences to limit the number of black students allowed in residences. In other words, on the Potchefstroom campus they are enthusiastic about affirmative action – in favour of white students.
Those who defend the University and wish to preserve the predominantly white, Afrikaans, quasi-authoritarian ethos on the Potchefstroom campus of NWU, argue that the Constitution protects the right of a state funded University like NWU to retain its unique cultural character. Some also argue that demands for the creation of a more inclusive campus, respectful of diversity in terms of language, race, religion and sexual orientation, must be seen as a frontal attack on the constitutionally protected right to teach white Afrikaans students in Afrikaans.
These arguments cannot be sustained and lack any understanding of the South African Constitution and how it is usually interpreted by the Constitutional Court. It is ignorant of (or chooses to ignore) the fact that the provisions of the Constitution must be interpreted contextually with reference to both South Africa’s particular history of racial discrimination and oppression and to the social and economic context within which education is offered in the country.
The arguments of those who defend Potchefstroom fail to recognise that the Apartheid state severely curtailed the ability of black students to obtain a quality education while providing white students with every possible opportunity to study at any of a number of whites-only Universities. The consequences of this 100-year programme of radical affirmative action for white students have not evaporated overnight.
These arguments also ignore the fact that South African Universities are public institutions, are funded by taxpayers’ money and provide a limited number of places to an ever increasing potential pool of students.
University places are a finite resource. Where some prospective students have more and better choices of where to study than other prospective students, the former group is privileged and the latter group is being discriminated against.
An argument that there are many Universities that cater for black students can therefore not be sustained. It would be like saying because there are many Shoprite Stores it would be perfectly acceptable for Woolworths to be reserved for white shoppers only.
This means that if a University mainly caters for white or Afrikaans students, that University denies black and non-Afrikaans students the opportunity to compete on an equal footing for places at that University, which is a public asset providing a public service, funded by taxpayers.
Thus, when policies, practices and the institutional culture at a University aim to restrict access to that University to a privileged segment of the population who largely benefited from Apartheid, it constitutes unfair racial discrimination in contravention of section 9 of the Constitution.
The defenders of the uniquely white (or even the uniquely Afrikaans) culture and traditions of a campus like that of Potchefstroom fail to recognise that the historically white Universities built up their reputations and amassed their financial and academic resources over many decades during Apartheid when most South African students were prohibited from attending such institutions.
During Apartheid the state spent vast sums of taxpayers money on these institutions as part of its policy of almost exclusively promoting the education of white students.
What the supporters of Potchefstroom and the more conservative promoters of “Afrikaner culture” at places like Stellenbosch University are demanding is that the state continues to subside white privileged to the detriment of especially African students.
They might argue that there are no legal rules that prohibit an African student from attending Potchefstroom campus of NWU or from attending Stellenbosch University. But a conservative, Afrikaans, semi-authoritarian institutional culture at a university can make it very difficult for black students to succeed at that University and will often in fact be exclusionary and hence discriminatory.
This means that in the name of preserving Afrikaans as an academic language or of preserving a “traditional culture” (a culture where no one thinks anything of requiring first year students to salute senior students in a manner that looks suspiciously like a Nazi salute), access for black (especially “African”) students to these taxpayer funded national treasures will be informally restricted.
This is in breach of section 9(3) of the Constitution, which does not only prohibit direct discrimination but also indirect discrimination. Indirect discrimination occurs when rules or practices that are applied to everyone nevertheless have the effect of disproportionately excluding a certain sector of society based on race, sexual orientation or language. This is what is happening at Stellenbosch University and at the Potchefstroom campus of NWU.
To counter this blindingly obvious constitutional fact, those who defend the rights of these Universities to teach in Afrikaans and to retain cultural practices and traditions that is alienating to the vast majority of taxpaying South Africans, refer to section 29(2) of the Constitution.
This section states that everyone has the right “to receive education in the official language or languages of their choice in public educational institutions”. However, this right is limited to situations “where that education is reasonably practicable”.
The problem is that where a scarce resource such as a place to study at a University is indirectly denied to the vast majority of South Africans on the basis of race, because a university adopts certain rules about the language of instruction or refuses to dismantle the exclusionary, semi-authoritarian, institutional culture on its campus, the Constitutional Court will never find that it is nevertheless “reasonably practicable” for the university to continue its discrimination.
In Head of Department: Mpumalanga Department of Education and Another v Hoërskool Ermelo and Another the Constitutional Court affirmed in the context of schooling that “the Constitution ardently demands that this social unevenness be addressed by a radical transformation of society as a whole and of public education in particular”.
But if it were at all possible to accommodate the teaching of students in their home language without limiting access to education for others (either in absolute terms or in terms of quality education) then it would be permissible.
As the Constitutional Court made clear, nothing in the Constitution prohibits Stellenbosch University or NWU from teaching some of its students in Afrikaans – as long as the university culture is totally transformed to make it welcoming to all students and as long as this will in no way exclude students who cannot understand or study in Afrikaans.
This means, first, that all classes must also be open and available to English students. Second, it means that exclusionary initiation practices must be eradicated.
As far as I can tell neither Stellenbosch nor the Potchefstroom campus of NWU comply with these basic constitutional requirements and are therefore in breach of the Constitution. The question is: how long will the rest of us who pay our taxes and subsidise these institutions tolerate this kind of discrimination?