No place for whites, really?

2014-09-17 06:45

First up, we must move from the starting point that South Africa is a country of laws.

It is a constitutional democracy in which the republic’s supreme law must always reign above all else – a society in which the Constitutional Court stands guardian over the nations laws, norms and practices.

There are decisions and practices which, as individuals and groups, we will hate. But because we are a country of laws, we live with the fact that we cannot always have it our way.

That is why society gets outraged when politicians and bureaucrats ignore judgments, intimidate the judiciary, insult heads of independent institutions and thereby undermine the rule of law.

We also have to accept that we come from an ugly past that was governed by an evil system.

Apartheid was not a figment of people’s imaginations.

It was a political, economic and social system based on the subjugation of one section of the population and the deliberate placing of another segment of the population at an advantage. What we also know is that the apartheid system wrought enormous suffering.

It stands to reason then that apartheid, which was systematically implemented for 46 years, would also have to be dismantled systemically.

That is why the Constitution explicitly speaks about redress as an imperative. Hence the restitution legislation that gives effect to that constitutional imperative.

It was very encouraging then that in its legal argument in the now famous Renate Barnard case, union Solidarity tacitly did not contest this and fought the case on its merits.

The merits were about how a competent and committed member of the SA Police Service (SAPS) had been twice unfairly denied a promotion despite being the best candidate.

Solidarity argued that this was unfair racial discrimination, and misinterpretation of the employment equity legislation and even the codes of the SAPS.

The trade union said such behaviour would have the long-term effect of harming service delivery because Barnard had valuable skills to impart and was being denied the right to do so.

So far, so logical.

However, in its message outside court, Solidarity sang a different tune. It turned Barnard into a poster girl for the struggle against “reverse racism”.

In her was the ultimate proof that affirmative action was the enemy of the white person. Success in this case would signal a major victory in this struggle by South Africa’s new oppressed: the whites.

The case became an emotive subject, pitching opponents and supporters of affirmative action against each other.

The emotions seesawed as the case went through the different levels of the judicial system. When the labour court ruled in favour of Barnard, opponents of affirmative action hooted in the traffic.

When the Labour Appeal Court overturned this ruling, it was the turn of affirmative action advocates to sway their hips. But this would be short-lived as the Supreme Court of Appeal batted the other way.

Then came the Constitutional Court judgment, which had the one side spitting on the ground and the other punching their fists in the air.

The emotion that accompanied this case and greeted its conclusion overwhelmed sober debate about its meaning. It was an important case that will long determine how we approach redress and restitution.

The Constitutional Court judgment, which had four separate opinions, was one of the most astute works by our highest court.

If they are not opposed to transformation and are committed to a forward-looking South Africa, Solidarity and their fellow travellers should read the judgment properly and see it for what it is.

They should avoid the lazy interpretation that the highest court in the land says there is no place for whites.

Probably the most important word in the judgment is ‘rational’. The overwhelming thrust of the judgment is that the implementation of redress must be done in a rational manner, that it should seek to right wrongs of the past, and create the conditions for a fair and just society.

The main judgment by Deputy Chief Justice Dikgang Moseneke reads: “It must be applied to advance its legitimate purpose and nothing else. Ordinarily, irrational conduct implementing lawful projects attracts unlawfulness. Therefore, implementation of corrective measures must be rational.”

The judgment also states strongly that “beneficiaries of affirmative action must be equal to the task at hand”, and also affirms the stance that the measure must not be “a refuge for the mediocre and incompetent”.

Those who benefit from affirmative action, Moseneke says, “must be suitably qualified people in order not to sacrifice efficiency and competence at the altar of remedial employment”.

Far from being a blank cheque for cadre deployment, the automatic favouring of people with high melanin counts and the exclusion of paler citizens, the judgment enjoins South Africans to think deeper about the intention, implementation and desired outcomes of affirmative action.

This important judgment is a huge empowerment tool for those who want to see affirmative action meet its stated objective of normalising society and for those who want to prevent the policy from being abused for vindictive and short-sighted purposes.

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