The Paradox of Non-Racial Politics While Recognising the Effects of Apartheid

by Vuyani Ngalwana

Ms Helen Zille is reported in the City Press newspaper of Sunday 22 May 2011 as having said about the Democratic Alliance: "We are a party that recognises the effect of apartheid and its psychological scars. Not entrenching race as the sole marker of identity is the antidote to addressing the past without entrenching apartheid." (my emphasis)

First, neither Ms Zille nor the DA has the foggiest idea about the "effects of apartheid and its psychological scars" on the people most ravaged by it. The DA's policy in the Western Cape as regards affirmative action and preferential procurement (which is a component of affirmative action) demonstrates the fact that the DA is clueless. Despite the Constitution entrenching affirmative action (in section 9(2) of the Constitution) and Parliament (of which the DA forms part) passing legislation in the form of the Employment Equity Act to give content and effect to affirmative action in employment as a constitutional imperative, Ms Zille and the DA have effectively outlawed it in the Western Cape. Yet she claims the DA "recognises" the effects of apartheid.

The Constitution entrenches preferential procurement of goods and services from black people in section 217(2). The Preferential Procurement Policy Framework Act gives effect and content to that constitutional imperative. It was passed into law by Parliament of which the DA forms part. Ms Zille and the DA have effectively outlawed it in the Western Cape and are set to do the same in all the municipalities they have recently won.  Yet they claim to "recognise" the effects of apartheid.

Second, "Not entrenching race as the sole marker of identity is the antidote to addressing the past without entrenching apartheid" is tortuous, oxymoronic twaddle. By this, Ms Zille seeks effectively to equate the redress of the inequalities of apartheid with entreching apartheid. She does so by asserting that redress focusses on race. Focussing on race entrenches it and therefore entrenches apartheid. It is an intellectually and, as it turns out, constitutionally vacuous proposition. At the risk of sounding trite, one cannot make an omelette without first breaking an egg. In this analogy the constitutional redress is the omelette and race is the egg. You cannot address the inequalities of apartheid without focussing on race.

The Constitution does so in sections 9(2) and 217(2). So, too, the legislation passed by the DA in the form of the Employment Equity Act and the Preferential Procurement Policy Framework Act. The Constitutional Court has said on at least two occasions that in constitutional redress some people will be affected more adversely than others because of the history of inequality in this country. It said because white people have largely been priviledged by apartheid, they will be adversely affected in the constitutional redress project. That's just the way it has to be, otherwise we're papering over over deep cracks.

I'd advise Ms Zille to read at least the following judgments of the Constitutional Court and then make up her mind as regards whether she is really being honest when she says the DA "recognises" the effects of apartheid.

• National Coalition for Gay and Lesbian Equality & Another v Minister of Justice and Others
• Bel Porto School Governing Body and Others v Premier, Western Cape and Another
• Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others

Ms Zille here are the effects of apartheid. Now you figure out whether this is what you have in mind when you say the DA "recognises" the effects of apartheid and then tell the voting public how you intend redressing these effects.

The Constitution now entrenches equal opportunity for all. Scores of black people are unable to take advantage of the opportunities that are on offer because apartheid denied them the tools with which they would now have been able to put to use for that purpose: quality education, skills, basic literacy. This is the effect of apartheid which has also bred an inferiority complex in black people and a sense of superiority in white people (I know it is hard in "white culture" to respect someone who is illiterate or unable to grasp the basic principles of life that you take for granted. Hence the superiority complex). How on earth can you address this problem without pouring resources on black youths with a view to redressing these effects of apartheid? How could such an initiative, intended to redress the effects of apartheid, constitute the entrenchment of apartheid?
An economics professor at Cambridge University, Professor Ha-Joon Chang, understands precisely what Ms Zille fails woefully to grasp and it is this. South Africa will remain a cappuccino society ("a mass of black at the bottom, a thin layer of white froth above it and a sprinkling of cocoa at the top") if a certain degree of "equalisation of outcomes" is not pursued with a view to creating a substantively and genuinely fair society. The failure to do this will breed economic resentment among black youths. Economic resentment breeds criminality which in turn breeds a nation that is frightered of itself. That depletes productivity levels as people are scared to venture out and the economy stalls. Think Columbia. Have you factored this scenario in your antagonism to remedial measures intended to redress the effects of apartheid?

The effects of apartheid are also more than just political and economic. An even greater damage caused by apartheid manifests itself in the perception that both races have of themselves and each other. If truth be told, many black people are generally not convinced that a black person can do a job just as well as, if not better than, a white person of similar qualification. That is an effect of apartheid. Even professional black people have fallen victim to this subtle sense of self-hatred. Such are the perverse effects of apartheid that the inferiority complex it has engendered in black people over long periods is still coursing our veins like a cancer. And this is not an affliction ravaging only the lower classes; it eats up black professionals and leaders with equal rapacity. Is this an effect of aprtheid the DA recognises? How are you going to redress it?

Here are a few real examples. Government (which is predominantly black and is the largest source of legal work) continues to instruct a small pool of white law firms and brief an even smaller pool of white advocates, while many competent black law firms and advocates eke out a miserable existence in the criminal courts dependent for the most part on the ramshackle and unreliable legal aid. These black lawyers passed the same exams as white lawyers.

Black and white professionals tend to appoint white personal assistants when similarly capable black candidates are legion. Black and white professionals herd off to large white firms for simple financial advice at exorbitant fees, leaving smaller black firms that are just as capable of rendering the same service at a fraction of that fee.

Blacks and whites readily trust a white doctor to tell them what it is they are suffering from, but are quick to seek second opinion when they (more often black professionals) dare seek a black doctor’s diagnosis. Black people tend to consider a white girlfriend or boyfriend or wife or husband something of a status symbol. Black people tend to measure their intellectual prowess by how well they pronounce English words or string together an English sentence without punctuations of “er” or “ahem”. Black people tend to view with fondness their children speaking English with an accent, and couldn’t be bothered about their inability to speak their mother tongue. These are the effects of apartheid that has bred an inferiority complex in black people. How are you going to redress them?

All this feeds into white people’s largely superior sense of themselves – superior to black people. In such climate of perceived white superiority to black, white soldiers murdered scores of black school children in June 1976 following the stoning of a police dog that had been set upon them, or simply for refusing to be taught in a particular language that is not their mother tongue. Senior white lawyers tend to seek to postpone the hearing of a court case if it should be allocated to a black judge by reason only of the judge’s blackness. In your province, white lawyers questioned the authorship of a black judge’s judgment by reason only of the judgment’s soundness, in a most bizarre demonstration of utter contempt not only for the judge concerned but also for the judicial institution and the people who appointed the judge in the first place. Are these the "effects of apartheid" that you say the DA "recognises"? How exactly has the DA recognised these and how does it intend addressing them?

A white family threw its black women employees into laundry machines, murdering them, only for the case of murder to be thrown out of court by a white magistrate for alleged lack of evidence. A white farmer considered it within the realms of decency to offer to pay a couple of thousand rand as recompense to a black man’s family after beating him to a pulp for daring to return to fetch his belongings following his being dismissed, and then throwing him into a lion’s den where he was devoured alive by a pride of lions. In some department stores the white cashier readily accepted a R200 note from a white customer without as much as a blink, but thoroughly inspect a R100 note offered by a black customer on the assumption that it is a counterfeit. A white man climbed in the front seat of his bakkie (or pick-up truck) with his dog, and ordered his black employee in the back of the bakkie exposed to the elements. Are these the effects of apartheid that the DA "recognises" and, if so, how does the DA propose to redress these psychological effects of apartheid on white people?

by Vuyani Ngalwana

Leadership in South Africa

by Vuyani Ngalwana

In the wake of recent political faux pas some will no doubt dismiss the title of this post as oxymoronic, not without justification.

But we would not have navigated our way through the perils of the old South Africa to a constitutional democracy without some leadership talent. So we owe it to ourselves to stop, look back whence we've come, and smile at the dexterity with which we have thus far managed to avoid a race war.

That is not to say we should now allow complacency to set in because the journey is not yet at an end. The leaders who have helped us navigate the perillous waters between Old SA and New SA have done their job and have, lest you have not noticed, deservedly retreated from the cutthroat and wanton mudslinging that pass for politics in latter-day public discourse. Clearly, that retreat by Messrs Mandela, De Klerk, Ramaphosa, Roelf Meyer, Tutu, Constand Viljoen has left a vacuum for a new generation of leaders to fill. Are they equipped to step into the breach and lead South Africa into the next stage of her development?

It seems to me we are still trapped (like a deer in the headlights of an on-coming freight-truck) in the romance of the leadership exploits, real or imagined, of Mr Mandela and Gen De La Rey. That means we're either standing still or going backwards. We have celebrated these leaders and continue to do so. Nothing wrong with that. But what South Africa needs more now are new generation leaders with the unquestionable integrity, judgment, and vision of a Nelson Mandela and the courage of a De La Rey.

There is a fair supply of leadership initiatives in the country and I wonder if sufficient numbers of our youth are taking advantage of the wealth of leadership science on offer there. Visionaries among us, who do more than just talk, have gone on to start and run leadership institutions and initiatives. There is Mr Eric Mafuna's African Leadership Institute; Dr Ruel Khoza's African Leadership course at Wits Mr Isaac Shongwe's African Leadership Initiative (of which I am part), and former President Thabo Mbeki's leadership initiative.

Some 5 years ago a friend and Fellow of the African Leadership Initiative launched the African Leadership Academy focussing on training young African leaders from Grades 10 to 12. These are all necessary interventions which I am certain will produce values-based, transformational (and hopefully Afro-Centric) leaders.

But is there no room for a South African Leadership Institute to produce a new generation of South African thinkers and business, political, academic and community leaders? An institute designed along similar lines as the Aspen Institute in Colorado, USA? I believe there is.

I am advised that the Black Management Forum championed precisely such an institute about five years ago. The BMF, with the assistance of an internationally acclaimed research company, made presentations on this idea at the World Economic Forum in Davos, Switzerland, and again in Cape Town in 2005 and 2006, respectively. By all accounts the idea was well-received and sponsorships were lined up. What happened next?

I believe there is room for everyone who cares about the future of this country to make that dream a reality without seeking to claim credit or usurping the project as one's own initiative. Let it be a South African initiative, borne of public discourse by all South Africans who are able to do so. Black and White intellectuals have a duty to see a South African Leadership Institute born in their life-time. If the current crop of leadership is all we've got, we're in trouble - desperately.

Affirmative Action is Just

by Vuyani Ngalwana

What is it about affirmative action that gets some people aploplectic and others apologetic? I venture to say it's lack of understanding, that's what.

A challenge to the implementation of affirmative action measures can never concern its philosophical basis, or its virtues or vices in whatever setting. It can also never concern an enquiry into its legal and moral rectitude.

The simple reason for this is that the debate as regards the philosophical, legal or moral rectitude of affirmative action was put to bed on 4 February 1997 when the Constitution, 1996, became law.

By sections 9(2) and 217(2) of the Constitution, the multi-party Constitutional Assembly (which adopted the final draft of the Constitution) and the Constitutional Court (which certified its provisions as being in compliance with all 34 constitutional principles) acknowledged that equality is an ideal whose achievement must be promoted through "legislative and other measures" if South Africans are to live by the constitutional values of human dignity, the achievement of equality, the advancement of human rights and freedoms, non-racialism, non-sexism, the supremacy of the Constitution and the rule of law.

While the Constitution accords everyone equality before the law (including the full and equal enjoyment of all rights and freedoms) and the right to equal protection and benefit of the law, it also allows for preferential treatment, by law, of persons or categories of persons who have been disadvantaged by unfair discrimination of the relatively recent past. That measure finds expression in s9(2) and s217(2) of the Constitution. s9(2) says

"To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimation may be taken."

s217(2) says while organs of state and government in all its spheres must procure goods and services in a manner that is fair, equitable, transparent, competitive and cost-effective, they are nonetheless not precluded from implementing a procurement policy that prefers persons or categories of persons disadvantaged by unfair discrimination with a view to protecting and advancing those persons.

These two constitutional provisions constitute the fons et origo of affirmative action. The "legislative measures" contemplated in the section come in the form of numerous Acts of Parliament intended to give content to the constitutional imperative of which the sections speak. These Acts of Parliament include the Employment Equity Act, 1998, (and regulations promulgated thereunder), the Preferential Procurement Policy Framework Act, 2000 (and its regulations) and the Broad-Based Black Economic Empowerment Act, 2003 (and regulations).

The express purpose of the Employment Equity Act is:

"to achieve equity in the workplace by ... promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination; and ... implementing affirmative action measures to redress the disadvantages in employment experienced by designated groups, in order to ensure their equitable representation in all occupational levels in the workforce."

In short, affirmative action is what it is. It is a measure that is intended constitutionally to prefer black people above white people both in employment and in the procurement of goods and services. The idea is to redress the effects of unfair discrimination over decades of apartheid. Beneficiaries of this measure should stop either being apologetic or in denial about it. White people who feel (whether genuinely or by design) adversely affected by it should learn to live with it and stop being aploplectic about it. This is a constitutional imperative - until the Constitution is amended.

There is nothing in any of these legislative measures that requires the promotion of incompetence above competence. The parallels that tend to be drawn between affirmative action and incompetence are simply mischievous.

For example, s15 of the Employment Equity Act defines "affirmative action measures" as being:

"measures designed to ensure that suitably qualified people from designated groups have equal employment opportunities and are equitably represented in all occupational categories and levels in the workforce of a designated employer."

The Constitutional Court has on numerous occasions acknowledged that remedial measures (such as affirmative action) will, as they must if they are to be effective, affect those advantaged by apartheid (white people) adversely. In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others 2004 (4) SA 490 (CC) the Court said:

"The emasures that bring about transformation will inevitably affect some members of the society adversely, particularly those coming from previously advantaged communities. It may well be that other considerations may have to yield in favour of achieving the goal we fashioned for ourselves in the Constitution."

That goal is the "constitutional commitment of achieving equality" through "affirmative action measures".

In Bel Porto School Governing Body and Others v Premier, Western Cape, and Another, the Counstitutional Court said:

"[I]n order to achieve the goals set in the Constitution, what has to be done in the process of transformation will at times inevitably weigh more heavily on some members of the community than others."

  

Put plainly, white people (because they generally benefitted from apartheid) will inevitably bear the brunt of constitutional redress of past racial inequalities the effects of which are still being felt today. There is absolutely no need to be pusillanimous about this. It is what it is. The Constitution and the Constitutional Court say so.

The Constitutional Court has also acknowledged the inordinate harm caused by apartheid to black people and that it is imperative that this be redressed not simply by passing laws by which racial discrimination is ended but rather by taking positive steps to extirpate the effects of that discrimination. It said in Bato Star:

"Our Constitution recognises that decades of systematic racial discrimination entrenched by the apartheid legal order cannot be eliminated without positive action being taken to achieve that result. We are required to do more than that. The effects of discrimination may continue indefinitely unless there is a commitment to end it."

Affirmative action gives content to that commitment to end the effects of racial discrimination.

To similar effect, the Court said the following in National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others:  

"It is insufficient for the Constitution merely to ensure, through its Bill of Rights, that statutory provisions which have caused such unfair discrimination in the past are eliminated. Past unfair discrimination frequently has ongoing negative consequences, the continuation of which is not halted immediately when the initial causes thereof are eliminated, and unless remedied, may continue for a substantial time and even indefinitely." 

Thus, as South Africans we need to take our heads out of the sand and accept the fact that without affirmative action (more frankly, the preferential treatment of black people over whites generally in relation to employment opportunities and the procurement of goods and services) South Africa will never achieve achieve the constitutional goal for which the Constitution enjoins all of us to strive - substantive equality. Absent that, we shall have created fertile ground for disaffection which will in turn breed violent crime, corruption and the death of the rule of law.