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.
How should South Africans deal with our troubled past? When we discuss matters such as land reform, race-based affirmative action, or the so called right of students to be taught in Afrikaans, what is the historical lens through which we should view our past? What role should we accord the past (however conceptualised) when we interpret the Constitution? And what does it say about our ethical commitment to social justice and fairness when we choose a particular lens through which to view our past?
The South African Constitution is different from many other Constitutions as it is said to be historically self-conscious. How we view the past and how we frame current human rights and other constitutional issues with reference to our past, will play a role in how we interpret and apply the provisions in the Constitution. Justice Ishmael Mahommed provided a tentative answer to these question when he stated in S v Makwanyane, that the Constitution:
retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular, and repressive and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos, expressly articulated in the Constitution. The contrast between the past which it repudiates and the future to which it seeks to commit the nation is stark and dramatic. The past institutionalized and legitimized racism. The Constitution expresses in its preamble the need for a “new order … in which there is equality between … people of all races”.
As I have written before, not all South Africans have a shared understanding of our past and the injustices highlighted by Justice Mahommed in his Makwanyane judgment. Much of the disagreement about Afrikaans at Stellenbosch, about race-based affirmative action and about land reform and property rights, arise because of these often unspoken or unacknowledged differences in the way we conceptualise our past.
Although most South Africans would now profess to repudiate the racism and authoritarianism of the pre-democracy era, they vehemently disagree about the significance of this past for understanding present-day ethical and legal questions. The historical lens through which we view ethical and rights-based legal issues also differ and influence the way in which we view our own position vis-a-vis the rights in the Constitution and our ethical commitment to fellow South Africans.
Some South Africans argue that 1994 represented a clean break with the past. In 1994, so they say, we drew a line through the past and this allowed us to dump and bury all the moral baggage which some of us acquired because we remained silent about the injustices around us or because we actively supported or took part in perpetrating these injustices and enjoyed the fruits of this injustice. Apartheid was terribly wrong, they say, but that is all in the past now. We need to look forward and must forget what happened because we have made a clean break in 1994. Those who harp on about the past are merely trying to take white South Africans on a guilt trip in order to justify the current or possible future exploitation of whites (the very category whose existence they also now deny) and the denial of their rights which are now enshrined in the Constitution.
Closely related to (and sometimes overlapping with) the above is the view about our past based on the notion of moral equivalence. According to this view the past must be seen through the eyes of the white settlers. It allows for an interpretation of our past by relying on the justificatory lens of the cold war and the “fight against communism”, or on the colonialist lens according to which the “white mans burden” required whites to retain political and economic control of South Africa in order to “civilise” the country, build up its infrastructure and “prepare” black South Africans for the democracy which finally arrived in 1994.
This group argues that although racial discrimination was not very nice, white South Africans really had very little choice but to advance their own economic and social interests because the liberation movements were primitive communists who would have killed all whites in their beds had black South Africans been “allowed” to vote. In as much as there was a struggle, the oppressor and the oppressed were morally equivalent – both doing bad things to advance their respective causes. Because both sides did bad things for essentially good reasons, it is morally imperative that we forget about the past and move on. This would mean that we accept that the perpetrators of apartheid were just as much the victims of the human rights abuses of the liberation movements in particular and black South Africans in general as the oppressed were victims of apartheid.
The historical context out of which democratic South Africa was born is therefore irrelevant. So, when we discuss the question of language at Stellenbosch University, it is not acceptable to take into account the fact that the National Party promoted a form of Afrikaner Nationalism in the name of imposing Afrikaans as the dominant language on all South Africans, or that apartheid Premiers – from DF Malan to PW Botha – served as Chancellors of Stellenbosch University, or that most of the parents who now agitate for the right of their children not to have to listen to any lecturer speaking English in a class voted for the National Party, enthusiastically discriminated against black South Africans and sometimes took part in the killing and torture of black South Africans in the name of preserving the white “civilisation” with Afrikaans at the top of the dung heap.
The members of yet another group have turned into historical nihilists. Some people, they argue, always do bad things to other people if they have the opportunity to do so to advance their own economic or social interests. One cannot merely focus on South Africa’s recent colonial and apartheid past because that would single out one group (white South Africans) for moral opprobrium when oppression and exploitation can be traced back all the way to the Garden of Eden.
Where do we draw the line, they ask? Why should we focus on the evils of apartheid when other groups throughout history have exploited and oppressed their opponents? All that matters is the here and now, because if we look back we will only see a series of really unsavoury actions by various groups and we will never be able to make decisive judgements about who the “good guys” and the “bad guys” were.
I differ from the views outlined above. The starting point for any ethical engagement with our country’s past must surely be an acknowledgement of the particularly egregious nature of colonialism and the system of apartheid which logically followed from it. This is an ideological and ethical stance based on the assumption that the particularly unjust social and economic conditions we are confronted with in democratic South Africa can be directly attributed to the colonial conquest of South Africa by white settlers and the merciless economic exploitation of black South Africans and the (often violent) imposition of a European-based culture, religion and languages. This had (and continues to have) a devastating effect on the dignity of indigenous people and on the moral and economic well-being of all South Africans.
This stance is based on the idea that we have a duty to respond to the immediate world around us and that our immediate past which have directly shaped (and misshaped) our world must be responded to, carefully, sincerely and honestly. We cannot sweep the past 100 years under the carpet because these event shaped our world and created much of the injustice we live with now.
When Afrikaners ignore our recent history and claim to have become victims of a terrible injustice because some of their children can no longer enjoy the privilege (not available to the majority of previously oppressed South Africans) to study exclusively in their own language at an institution bankrolled by the democratic state, I see a terrible moral failure at the heart of their argument because of their unwillingness to respond to the immediate past and to face up to it.
Their lack of historical perspective and their failure to appreciate that — given our colonial and apartheid history — the agitation for a dominantly Afrikaans University (instead of a truly inclusive multilingual institution) represents a moral failure on their part. As what they demand would perpetuate the privileges they obtained through exploitation and a dehumanising policy of apartheid, this position is (in my view) deeply immoral — no matter how earnest and sincere the intensions of the agitators.
Of course, this set of assumptions and the lens through which I initially view such controversies is my starting point, but it is not my end point — and this complicates my argument. There are many other lenses through which one could view our past and many of them would be valid. One could embrace a class analysis and note how apartheid functioned for a long time as a handy tool through which cheap unskilled labour were produced to fuel the capitalist machine. Or one could note the gendered nature of much of the exploitation and oppression that occurred in the past and which lingers to this day in the form of patriarchy. One could adopt a “queer” reading of our past and focus on the way in which colonial missionaries, in cahoots with African traditionalists and patriarchs of every stripe, have managed to impose a heteronormative world view on society which (even today) results in the most despicable forms of discrimination and violence agains gay men and lesbians.
Because the hegemonic power of the denialists discourse is so strong, there is a tendency (also on my part) to avoid talking about these complex matters. A hegemonic discourse (denying the relevance of our immediate past) can best be confronted by presenting a counter-hegemonic discourse (noting the moral failure of the oppressor through the lens of colonialism and apartheid). The difficult task is to start by looking at our world through the lens of colonialism and apartheid, but not to get stuck there, to add nuance to our understanding of the world we live in and to confront injustice — also when it is perpetrated in the name of an anti-colonialist and anti-apartheid struggle.
When one engages with an issue such as whether some have a “right” to be taught in Afrikaans, it is difficult to present a nuanced argument because the denial by the taalbulle of the ethical universe which have shaped our world and continues to shape it. The denial of the importance of context and history and of its influence on ethical (and therefore also human rights) issues in present day South Africa forces one to confront and expose the immorality of their position in stark terms, leading to a simplified engagement with the past.
How do we move forward? What the taalbulle do not understand is that a more nuanced engagement with our past, based on the basic premise that the very existence of Stellenbosch University as a dominantly Afrikaans institution, was made possible by a system that oppressed the majority of South Africans. After accepting this, we can have a real discussion about the future. One cannot take the milk out of a cup of coffee and cannot undo the effects of colonialism and apartheid (that is why we cannot all just stop speaking English, or Afrikaans for that matter). But one can try to engage with these issues in a pragmatic and slightly less self-righteous way. Those who do, might find that it is possible to reach compromise solutions.BACK TO TOP