Upholding the law for everyone

2010-03-10 00:00

WHEN the writer of a column cannot even relate the basic facts of a matter correctly, alarm bells regarding the veracity of the statements made throughout the piece, should ring loud and long. So it is with Siphamandla Zondi’s latest piece, dealing with the Solidarity Trade Union-Renate Barnard verdict in the Labour Court (The Witness, March 2).

Zondi describes the nature of the case as one in which Barnard, a white female captain in the SAPS, “… challenged the SAPS for passing her over in favour of a black person for a promotion opportunity”.

In fact, according to the judgment, the SAPS twice decided that rather than promote a white person, it would not fill the post at all. The court found that this decision constituted unlawful discrimination based upon race, lacked rationality and lacked sufficient consideration of Barnard’s rights to equality and dignity.

In my view, Zondi’s piece represents little more than equal doses of scaremongering and intimidation, cloaked in sophistry. One of Zondi’s many near-hysterical rants, sets the tone: “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.” However, according to Zondi, Solidarity only appears to have nine similar cases pending. Is this really the “onslaught on the principle of representivity” that will overturn 15 years of illegitimate cadre deployments, executed under the guise of affirmative action?

Zondi is, in any event, misquoting Solidarity, whose press release states: “The implication of today’s ruling is that companies and state institutions that use representivity as the most important criterion in the implementation of affirmative action are acting illegally.”

In other words, Solidarity is challenging the misapplication of the policy, not the policy itself and certainly not the principle that employment practices in the public service must, in terms of section 195 of the Constitution, reflect “… the need to redress the imbalances of the past to achieve broad representation”.

In summary, Zondi seems to recognise that challenges such as Barnard’s are legitimate, but wants minority groups to refrain from vigorously pursuing their rights, particularly in the courts, whose “… rulings can only breed bitterness and public anger”. Instead, Zondi wants minority groups to “use dialogue platforms to negotiate voluntary concessions from the majority”.

While Zondi attempts to paint Solidarity as an emerging political force in the mould of Cosatu, able to negotiate a better deal for its supporters, Solidarity would be lucky to retain its deposit if it tried to contest the next general election, whereas Cosatu would seriously hurt the ANC if it ran alone. If the combined efforts of the opposition parties who want concessions on affirmative action have had no impact on the government, how is Solidarity going to do any better than it is doing as a trade union, by negotiating with “the majority”? Solidarity does nothing that threatens to undermine the fabric of society, but those who undermine the Constitution, even in the subtle way that Zondi does, certainly do threaten that fabric.

Zondi fails to demonstrate that he understands the nature and purpose of a Constitution founded on human rights and of the need for courts to uphold the rights enshrined therein. The purpose of constitutional law is not only to balance rights, but to balance unequal power relations. The state holds power over its citizens, an employer over employees and a racial majority over a racial minority. Barnard and Solidarity are not asking for any concessions, or even any changes to the law: they are simply asking that the law as it stands be upheld and that power not be abused.

• Barry Wilkinson works in the Office of the Premier. He writes in his personal capacity.

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