Balancing rights

2010-03-02 00:00

SOLIDARITY is more than just a trade union. As the name suggests, it is a social movement seeking to protect the rights of white minorities from what they see as instances of abuse by the black majority through the government­.

The union is smart in making use of our liberal Constitution and laws to seek a legal precedent for its cause. Whether it is fighting against the removal of names of colonial leaders regarded by blacks as offensive or the struggle for preservation of Afrikaans-only schools, Solidarity shows a strong commitment to its cause.

It does not seem too concerned about the broader political implications that its struggles have, especially­ with regard to nation building.

Last week the union’s fight against affirmative action, framed as a fight for “competence”, took another turn when the Labour Court ruled on Friday that SAPS Captain Renate Barnard should be promoted to the position of superintendent. Barnard had challenged the SAPS for passing her over in favour of a black person for a promotion opportunity. In doing so, she argued that competence is a more important consideration for employment or promotion than representativity. The court accepted this argument in its judgment.

The court judgment sets a legal precedent, the ultimate impact of which may render redress to correct the wrongs of the past illegal, and thus lead to perpetuation of past injustices. It emboldens both fair and mischievous challenges to the measures instituted to correct the wrongs of the past in both employment and procurement.

In a hastily assembled press conference, Solidarity leaders announced a larger onslaught on the principle of representativity. They have nine similar cases against the government pending, for which they believe the government has no legal ground in the face of the judgment by the Labour Court. There are likely to be many more aggrieved whites seeking Solidarity’s legal assistance in challenges that could be tantamount to a reversal of the freedom gains of the past 15 years.

This will transform the union into a preferred bastion of white rights, eclipsing conservative political parties. In the process, it may become a political platform for many aggrieved elements in the white population, even ultra-conservatives and racists.

We may be witnessing the onset of a subtle, but potentially fundamental counter-wave to transformation.

This has serious implications for a country in transition from an oppressive and violent past towards a peaceful and cohesive society, because it may undo the reconciliation and nation building Nelson Mandela championed.

Central to our democracy is the right of all to use courts to defend their constitutional rights. This provides a bulwark against abuse by government and powerful interest groups. Of course, the challenge for our society is to exercise a delicate balancing act of preserving minority rights without eroding the basis for building a united and peaceful nation.

Given our history, the need to reverse racial domination by a minority must not be undermined. Minority interest groups should be careful that their cause is not accomplished in a manner that stalls the creation of a united South Africa. Similarly, the government should not implement redress in a way that drives minorities to just, but divisive counter attacks.

That affirmative action and preferential procurement have not always been applied properly is true. Officials have sometimes used it for nepotism and to hire incompetent people, thus doing a disservice to the very cause of redress. This even violates the very laws they purport to implement.

Unfortunately, this gives forces opposed to transformation an opportunity and a legal basis to challenge the very legacy of Mandela.

The way to solve this is to improve and deepen social dialogue across colour lines on nation-building and to develop national consensus around the quest for justice that Finance Minister Pravin Gordhan referred to during the budget speech. Minority interest groups have to use dialogue platforms to negotiate voluntary concessions from the majority. This is a better strategy than using courts to force their interests on the majority.

Secondly, the government needs to improve implementation of redress policy, namely affirmative action, name changes and preferential procurement. The overriding aim should be to foster unity and justice in diversity rather than disproportionate domination.

Civil society has to ensure that balanced outcomes are realised through vigilant monitoring and advocacy. It has to coalesce a lot more around issues that are for the greater good of South Africa. Civil society has the capacity to forge a common understanding across all divides and give direction to society on matters relating to building a prosperous and inclusive nation.

Solidarity will then have a platform within civil society to seek a balance in the manner in which the government furthers constitutional imperatives for redress and cosmopolitan values of human rights and justice.

You cannot build a peaceful nation through heavy handed measures. Court rulings can only breed bitterness and public anger. This will, in the long run, pull the country apart and render nation building a futile effort.

• Siphamandla Zondi is the executive director of the Institute for Global Dialogue, but writes in his personal capacity.

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