Quote of the week

Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation.  This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.

KHAMPEPE J and THERON J
Public Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29 (22 July 2019)
25 September 2018

Why are some right wing whites so outraged by uncontroversial Con Court “hit the boer” judgment?

It is a truth universally acknowledged that most South Africans – including some journalists – are not fond of studying (or even reading) a document before commenting on its content. Much of the reporting and subsequent comments (especially from right-wing AfriForum supporters) about a recent Constitutional Court judgment, illustrates this tendency to form strong opinions on documents that remain stubbornly unread.

It all started with a newspaper headline: ‘Hit the boer’ song not racially offensive‚ rules ConCourt. Soon afterwards, outraged white South Africans started berating me on Twitter, expressing their horror at the judgment, often by suggesting that the judges of the Constitutional Court were “racist”, and/or ANC or EFF “lackeys”, and/or “deranged”.

It is not a coincidence that many of these outraged white people shouting at me on Twitter about the judgment used the most vile and racist or homophobic language to do so, thus demonstrating that their complaint was not with racism or other forms of bigotry, but rather with those who challenge it.

The most voluble critics of the judgment (at least on my Twitter feed) have been AfriForum supporters, incensed because I mentioned that the Constitutional Court late last year held in AfriForum v University of Free State that AfriForum’s campaign to protect the privileged position of Afrikaans at the University of the Free State “perpetuates segregation and racism – because it offends constitutional norms”. In the same case, in a separte judgment written partly in Afrikaans by Froneman J, the Court also remarked that:

On a previous occasion members of this Court remarked that AfriForum created an impression of racism, for which it had itself to blame… [W]hat is singularly lacking in the applicants’ founding affidavit is any recognition of the complexity of the language rights of others and the unequal treatment of oppressed people of other races in the past, let alone the continued existence of historic privilege.

But, to be fair, the trouble started with some appaling reporting (and even worse headline writing) about the Constitutional Court judgment. The judgment – in the case of Duncanmec (Pty) Limited v Gaylard – is not long by the standards of the Constitutional Court, which makes the incorrect reporting on it so much more puzzling.

The case dealt with a decision by a CCMA arbitrator who ordered the reinstatement of a group of fired workers. The workers were fired after a strike, during which they sang an isiZulu song translated as follows: “Climb on top of the roof and tell them that my mother is rejoicing when we hit the boer”. The arbitrator at the CCMA held that:

While I regard the singing of the song… as inappropriate, particularly within the context of a workplace, I am of the view that a differentiation between singing this song and referring to someone with a racist term needs to be drawn. This is since this song is a struggle song and there is a history to it. While this is the case the song can be offensive and cause hurt to those who hear it.

Even the CCMA did not in fact hold that the singing of the song could never be racially offensive. Instead, it pointed out that “boer” is not a racially offensive term – just like “black” or “white” are not in and of themselves racially offensive terms. The question of whether the singing of the song could ever constitute hate speech was not decided by the CCMA, nor by the Labour Court or the Constitutional Court. The CCMA nevertheless found that the song could cause hurt to others.

To understand the Constitutional Court judgment, it is important to understand that this case was in fact dealing with a decision of the Labour Court to decline to review and set aside the decision of the CCMA. The Constitutional Court had to decide whether the Labour Court dealt with the review application correctly.

The case before the Constitutional Court was not one in which the employer appealed the correctness of the decision by the CCMA. Instead it was whether the review of the CCMA decision by the Labour court was appropriate. There was no appeal on the merits of the CCMA decision and the Constitutional Court judgment provides no indication of whether the court agrees with the CCMA decision or the reasons provided for it.

As this was about the correctness of a review by the Labour Court and not an appeal of the CCMA decision, the Constitutional Court only had to decide whether the “decision [was] of the kind that could not be made by a reasonable decision-maker”. As the Constitutional Court explained:

This test means that the reviewing court should not evaluate the reasons provided by the arbitrator with a view to determine whether it agrees with them. That is not the role played by a court in review proceedings. Whether the court disagrees with the reasons [provided by the CCMA] is not material. The correct test is whether the award itself meets the requirement of reasonableness. An award would meet this requirement if there are reasons supporting it. The reasonableness requirement protects parties from arbitrary decisions which are not justified by rational reasons.

The Constitutional Court judgment did contain some comments on racism, linking racism (as it usually manifests itself in South Africa) to the policy of apartheid and its lingering aftermath:

Racism and discrimination were the hallmarks of the policy of apartheid that was implemented in the previous order. That policy rested on the false notion and belief that the white race was superior and that the other races were inferior. Consequently, black people were denied their dignity and other fundamental rights. The institutionalisation of racism brought intolerable suffering, hurt and humiliation to them.

One could imagine that a white person who has little personal knowledge of how racism works and how it affects people, and who has not read any of the vast academic literature on racism published over the past 60 years might have thought these comments controversial.

As an aside, the Constitutional Court expressed another uncontroversial view about the limited impact of the Constitution at changing the hearts and minds of people whose lives are rooted in and given meaning by the logic of white supremacy. The Court noted in this regard that:

Regrettably, so far the Constitution has had a limited impact in eliminating racism in our country. Its shortcomings flow from the fact that it does not have the capacity to change human behaviour. There are people who would persist in their racist behaviour regardless of what the Constitution says. It is therefore the duty of the courts to uphold and enforce the Constitution whenever its violation is established.

Perhaps some of the journalists who misinterpreted the judgment (or the sub-editors who attached misleading headlines to the various articles) were led astray by another uncontroversial finding of the CCMA (perhaps endorsed by the Constitutional Court), namely that the term “boer” – used on its own – is not an offensive racist term.

It became clear during the hearing that the only word that referred to race was ‘boer’. Depending on the context, this word may mean ‘farmer’ or a ‘white person’.  None of these meanings is racially offensive.

In this sense, the word “boer” is very different from racially offensive words such as the “k” word – which is why some white Afrikaners specifically refer to themselves as “boere”. This was conceded by the employer in the case before the CCMA and before the Constitutional Court.

Although the Constitutional Court was not required to make any finding on whether the conclusions of the arbitrator in the CCMA about the nature of the song were correct, it nevertheless agreed to approach the matter (without deciding it) “on the footing that the employees were guilty of a racially offensive conduct”.

It therefore beggar belief that any journalist (even one with little legal knowledge) who had carefully read the judgment could have thought that the Constitutional Court had ruled that the “hit the boer” song was not racially offensive. Of course, fewer readers would have clicked on an article informing them that the Constitutional Court had expressed no opinion on the matter, but that is no excuse for getting the basic facts wrong.

All the Constitutional Court did was to note – as it was legally required to do – that the CCMA arbitrator had concluded that the song was inappropriate and that “it can be offensive and cause hurt to those who hear it”, but that there was a difference “between singing the song and referring to someone with a racist term”.  The Court also pointed out – as it was legally required to do – that these factual findings were accepted as correct by the employee.

It then answered the legal question posed by the case (namely, whether the CCMA decision is one a reasonable person could have reached) by looking at the reasons provided by the arbitrator. The question was not whether the decision by the CCMA was correct, but whether it could reasonably have been made, given the factual findings made by the arbitrator.

If the reasons advanced rationally support the outcome arrived at, interference with the award on the basis of unreasonableness would not be justified. This would be the position even if the Court does not agree with the reasons furnished.

Given this legal test, it is not surprising that the Constitutional Court declined to overturn the decision of the Labour Court. To be fair, some reports did attempt to reflect the reasoning of the Constitutional Court. But, judging from the outrage about the judgment that burst forth from certain quarters, many white South Africans either did not read these more accurate reports, or chose to ignore them.

Perhaps this, also, is not that surprising. When racists have to choose between acknowledging the facts and cultivating their bigotry and hatred, they tend to do the latter.

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