Mogoeng: We are too soft on racism

2016-11-08 14:46
Chief Justice Mogoeng Mogoeng. (Pic: Ntswe Mokoena/GCIS)

Chief Justice Mogoeng Mogoeng. (Pic: Ntswe Mokoena/GCIS)

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In a unanimous judgment on 8 November in the matter between Sars and an employee who used the k-word in the Constitutional Court, Chief Justice Mogoeng Mogoeng writes:

This case owes its genesis to the use of the term kaffir in a workplace and a more assertive insinuation that African people are inherently foolish and incapable of providing any leadership worthy of submitting to. It bears testimony to the fact that there are many bridges yet to be crossed in our journey from crude and legalised racism to a new order where social cohesion, equality and the effortless observance of the right to dignity is a practical reality.

South Africa’s special sect or brand of racism was so fantastically egregious that it had to be declared a crime against humanity by no less a body than the United Nations itself.  And our country, inspired by our impressive democratic credentials, ought to have recorded remarkable progress towards the realisation of our shared constitutional vision of entrenching non-racialism. Revelations of our shameful and atrocious past, made to the Truth and Reconciliation Commission, were so shocking as to induce a strong sense of revulsion against racism in every sensible South African. But to still have some white South Africans address their African compatriots as monkeys, baboons or kaffirs and impugn their intellectual and leadership capabilities as inherently inferior by reason only of skin colour, suggests the opposite; and does in fact sound a very rude awakening call to all of us.

In order to give some context and shed light on the correct attitude to adopt in dealing with the term kaffir, it is necessary to flesh out its history, meaning and implications. Dr Gabeba Baderoon says “kaffir” is “the most notorious word in South African history, known most pointedly for its license of violence towards blacks during apartheid, but first used and elaborated during the colonial period.”

She goes on to observe that it is offensive in all senses and combinations to the extent of being unspeakable today. Its use now constitutes a hate crime in our country and is unpardonably painful and violent. This is in line with the observation made about 33 years ago by Van Rensburg J and Jennett AJ that:

“When a black man is called a ‘kaffir’ by somebody of another race, as a rule the term is one which is disparaging, derogatory and contemptuous and causes humiliation.”

It follows that the word kaffir was meant to visit the worst kind of verbal abuse ever, on another person. Although the term originated in Asia, in colonial and apartheid South Africa it acquired a particularly excruciating bite and a deliberately dehumanising or delegitimising effect when employed by a white person against his or her African compatriot. It has always been calculated to and almost always achieved its set objective of delivering the harshest and most hurtful blow of projecting African people as the lowest beings of superlatively moronic proportions. 

Prof. Pierre De Vos has this to say about the term kaffir:

“This term has an ugly history in South Africa and was almost exclusively used by white racists as a gross generalisation to denigrate black South Africans.  To be called a ‘kaffir’ is to be called a lazy and stupid person.  But the assumption behind the word is that by being lazy and stupid one is merely behaving as all black people always behave – as white people expect black people and know all black people to behave.  So even when a white person is called a ‘kaffir’, the recipient of the insult is being told that he or she is just as lazy and stupid as all black people are known to be by all racist white people.

It could only have been with this disrespect in mind and the need to make a decisive break from the ills of the past, that non-racialism, human dignity and freedoms (which include freedom of expression without any trace of hate speech) are values foundational to our constitutional democracy. The healing of the divisions of the past, the national unity and reconciliation that need to be built and fostered respectively, are likewise intended to entrench peaceful co-existence, respect and the right to dignity of all our people. It was in recognition of this constitutional vision that Brooks J recently endorsed the remarks in Puluza in the following terms:

“The appropriateness of this observation has not been adversely affected by the passage of more than thirty years since it was first expressed in S v PULUZA.  If anything, the truth which finds expression therein is even more accessible today than it was before the dawn of a constitutional democracy in South Africa and the concomitant dramatic increase in the awareness of her citizens of the need to recognize, respect and exercise the demands now made by society for the demonstration of respect for human dignity and equality. The term ‘kaffir’, historically bandied about with impunity, is a term which today cannot be heard without flinching at the obvious derogatory and abusive connotations associated with the term.  It is rightly to be classified as an inescapably racial slur which is disparaging, derogatory and contemptuous of the person of whom it is used or to whom it is directed.  Considered objectively, its use can only be as an expression of racism with a clear intention to be hurtful and to promote hatred towards the person of whom it is used or to whom it is directed.  This brings its use clearly within the ambit of section 10 of PEPUDA.

The italicised portion of the quotation captures the best rendition of the use of the word kaffir as being undoubtedly disparaging, hurtful and intentionally hateful. According to Brooks J, that use clearly falls within the meaning of hate speech in section 10 of the PEPUDA.

The Supreme Court of Appeal per Mathopo AJA said of the word kaffir:

“In our racist past it was used to hurt, humiliate, denigrate and dehumanise Africans. This obnoxious word caused untold sorrow and pain to the feelings and dignity of the African people of this country. . . . [S]uch conduct seeks to negate the valiant efforts made to break from the past and has no place in a country like ours which is founded upon the democratic values of human dignity, and the advancement of human rights and freedoms.”

Calling an African a ‘kaffir’ thirteen years deep into our constitutional democracy, as happened here, does in itself make a compelling case for all of us to begin to engage in an earnest and ongoing dialogue in pursuit of strategies for a lasting solution to the bane of our peaceful co-existence that racism has continued to be. The duty to eradicate racism and its tendencies has become all the more apparent, essential and urgent now. For this reason, nothing that threatens to take us back to our racist past should be glossed over, accommodated or excused. An outrage to racism should not be condescendingly branded as irrational or emotional. This is so not only because the word kaffir is “an inescapably racial slur which is disparaging, derogatory and contemptuous”, but also because African people have over the years been addressed as kaffirs. This seems to suggest that very little attitudinal or mind-set change has taken place since the dawn of our democracy.

South Africans of all races have the shared responsibility to find ways to end racial hatred and its outstandingly bad outward manifestations. After all racism was the very foundation and essence of the apartheid system. But this would have to be approached with maturity and great wisdom, obviously without playing down the horrendous nature of the slur. For, the most counterproductive approach to its highly sensitive, emotive and hurtful effects would be an equally emotional and retaliatory reaction. But why is it that racism is still so openly practiced by some despite its obviously unconstitutional and illegal character? How can racism persist notwithstanding so much profession of support for or commitment to the values enshrined in our progressive Constitution and so many active, pro-Constitution, nongovernmental organisations?

Are we perhaps too soft on racism and the use of the word kaffir in particular? Should it not be of great concern that kaffir is the embodiment of racial supremacy and hatred all wrapped up in one? My observation is that very serious racial incidents hardly ever trigger a fittingly firm and sustained disapproving response. Even in those rare instances where some revulsion is expressed in the public domain, it is but momentary and soon fizzles out. Sadly, this softness characterises the approach adopted by even some of those who occupy positions that come with the constitutional responsibility or legitimate public expectation to decisively help cure our nation of this malady and its historical allies.

Another factor that could undermine the possibility to address racism squarely would be a tendency to shift attention from racism to technicalities, even where unmitigated racism is unavoidably central to the dispute or engagement. The tendency is, according to my experience, to begin by unreservedly acknowledging the gravity and repugnance of racism which is immediately followed by a de-emphasis and over technicalisation of its effect in the particular setting. At times a firm response attracts a patronising caution against being emotional and an authoritative appeal for rationality or thoughtfulness that is made out to be sorely missing.

That in my view is a nuanced way of insensitively insinuating that targets of racism lack understanding and that they tend to overreact. That mitigating approach would create a comfort zone for racism practitioners or apologists and is the most effective enabling environment or fertile ground for racism and its tendencies. And the logical consequence of all this gingerly or “reasonable” approach to racism, coupled with the neutralising reference to the word kaffir as the “k word”, is the entrenchment and emboldenment of racism that we now have to contend with so many years into our constitutional democracy. Imagine if the same approach or attitude were to be adopted in relation to homophobia, xenophobia, arrogance of power, all facets of impunity, corruption and similar societal ills. That somewhat exculpatory or sympathetic attitude would, in my view, ensure that racism or any gross injustice similarly handled, becomes openly normalised again.  Those who should help to eradicate racism or gross injustice could, with that approach, become its unintending, unconscious or indifferent helpers.

The Constitution is the conscience of the nation. And the courts are its guardians or custodians. On their shoulders rests the very important responsibility of holding our constitutional democracy together and giving hope to all our people that their constitutional aspirations will be realised. To this end, when there is litigation about racial supremacy-related issues, it behoves our courts to embrace that judgement call as dispassionately as the judicial affirmation or oath of office enjoins them to and unflinchingly bring an impartial mind to bear on those issues, as in all other cases.

Judicial officers must be very careful not to get sentimentally connected to any of the issues being reviewed. No overt or subtle sympathetic or emotional alignments are to stealthily or unconsciously find their way into their approach to the issues, however much the parties might seek to appeal to their emotions. To be caught up in that web, as a judicial officer, amounts to a dismal failure in the execution of one’s constitutional duties and the worst betrayal of the obligation to do the right thing, in line with the affirmation or oath of office.

Courts cannot therefore afford to shirk their constitutional obligation or spurn the opportunities they have to contribute meaningfully towards the eradication of racism and its tendencies. To achieve that goal would depend on whether they view the use of words like kaffir as an extremely hurtful expression of hatred and the lowest form of contempt for African people or whether the outrage it triggers is trivialised as an exaggeration of an otherwise less vicious or vitriolic verbal attack.

Read the full judgment here:

http://www.constitutionalcourt.org.za/Archimages/25421.PDF

Read more on:    mogoeng mogoeng  |  racism  |  constitutional court

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