Guest Column

Constitutional Court tangled up in racial ideology

2018-01-15 08:00
Chief Justice Mogoeng Mogoeng

Chief Justice Mogoeng Mogoeng

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Kallie Kriel

The recent ruling of the Constitutional Court in which AfriForum was refused leave to appeal against the University of the Free State’s (UFS) English-only language policy, shows how deeply the court has become entangled in the racial ideology of the current political order and ruling elite.

It is appreciated that the minority ruling of Judge Johan Froneman, with the support of Judges Cameron and Pretorius, did not support the majority ruling of Chief Justice Mogoeng Mogoeng and co., in which Afrikaans was sacrificed in order to advance the current race-obsessed ideology.

However, the stranglehold of ideology on the Constitutional Court even tainted the minority ruling, because Froneman – just as in the case regarding the change of street names – first had to bow before the ruling order, by criticising opponents of the race-obsessed transformation ideology, like AfriForum, before daring to differ from the majority.

The irony is that with this criticism, those who are fighting for the survival of Afrikaans and who are the victims of the ruling order’s anti-Afrikaans agenda, are now placed in the accused dock, while it is the anti-Afrikaans racists who should rather be there.

It is equally inappropriate that the criticism against AfriForum is not in any way based on legal grounds, but simply on AfriForum’s refusal to blindly adopt the view of the ruling order.

When the court attempts to prescribe to organisations like AfriForum what their views should be, we are on dangerous terrain.

I realise all too well that my opinion that the Concourt has become entangled in the ideology of the ruling order will unleash a storm among those who try to elevate the court and the Constitution to divine status. Don’t misunderstand me; I do not claim that the Constitution and the court are ineffectual. It is, after all, a fact that the Concourt made strong rulings against President Jacob Zuma concerning the Nkandla scandal and other matters. Rather, I argue that Afrikaners, Afrikaans-speakers and other minorities must realise that a distinction must be made in terms of the type of cases that can be successfully tried in the highest court in the land.

When a case is concerned with disputes within the ruling political elite, corruption, maladministration or other matters that do not involve racial ideology and transformation, it is likely that the Concourt will decide for the benefit of the entire community. Most of AfriForum's court cases fall in this category and therefore the organisation will continue to use the courts successfully to fight poor service delivery and corruption.

In cases where the interests of Afrikaners and other minorities must be weighed against the prevailing ideology, the Concourt has shown time and again that the rights of minorities are regarded as subordinate.

Those who want to criticise me for this statement should take the time to read what Judges Froneman and Cameron wrote in their minority ruling in the street name case. They warned that the majority ruling came down to a situation where “[a]ny reliance by white South Africans, particularly white Afrikaner people, on a cultural tradition founded in history, finds no recognition in the Constitution, because that history is evidently rooted in oppression.”  

In addition to the Concourt’s condoning of the undermining of Afrikaans at the UFS, there are also many other rulings that disregard the rights of minorities. The court has, for example, found that the expropriation of mineral rights is not a violation of property rights; that racial discrimination against white people in the workplace is acceptable; that Afrikaans schools can be forced to change their language policy and that process-driven public participation is of less importance during street name changes.

These rulings are, of course, in direct conflict with the promises made by the constitutional negotiators to Afrikaners during the political transition. Afrikaners were told that if they would give up their political power, protection would be guaranteed for their property, education and language. Now it seems that Afrikaners have been deceived.

The realisation that the Constitutional Court will not protect Afrikaners and Afrikaners’ rights as minority communities, means the end of an era. Whereas many Afrikaners have in the past few decades largely placed their hopes first on the Government of National Unity and later exclusively on the Constitution as a mechanism to support minorities in their pursuit of a continued free, safe and prosperous existence, it is clear that other solutions need to be sought.

However, the realisation that the Constitution does not protect their rights as minorities will not lead to a state of despondency among Afrikaners, Afrikaans-speakers and other minorities.

In their history, Afrikaners have already faced much bigger challenges, such as after the Anglo-Boer War when they had to build a future for themselves from scratch. There is no reason why the current generation should not overcome the challenges by establishing independent institutions that take the initiative to build a better future.

If the current dispensation does not allow Afrikaans-speakers an Afrikaans university and other cultural spaces, minority communities will have to create independent institutions themselves to ensure their survival.

Afrikaners can and will do it, irrespective of what the anti-Afrikaner racists say or do to try and oppress them.

- Kriel is CEO of AfriForum.

Disclaimer: News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of News24.

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