The New Right to Equality

Written by: Jack Calhoun

Section 1 of the Constitution of the Republic of South Africa states that South Africa is one, sovereign, democratic state founded on the following values:

  • Human dignity, the achievement of equality and the advancement of human rights and freedoms;
  • Non-racialism and non-sexism;
  • Supremacy of the Constitution and the Rule of Law; and
  • Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government to ensure accountability, responsiveness and openness.

The above section embodies the point of departure when the law of the Republic is to be applied, and gives direction to the executive on how to exercise their public power.

It is the product of what has often been called a “negotiated revolution,” referring to the consultative process which preceded the Constitution’s promulgation in 1996. In this process, representatives of numerous cultural, racial and other entities were involved, at least in theory, to ensure that a constitution was agreed on which would protect the legitimate interests of all who live in South Africa, whatever those interests may be.

From the language of section 1, the aim seems to have been to create a society whose inhabitants were all ensured to be treated with dignity, equality, in a non-racialist or sexist manner and where human rights and freedoms would be bestowed upon all citizens.

The above aims are laudable, but as has been pointed out by certain scholars on constitutionalism, constitutions are often changed not only through legal process, but also through interpretation by the courts, and politicians. This is done by simply reinterpreting or changing the meaning of the words contained in the Constitution.

In his widely-acclaimed book on international relations, Samuel P Huntington makes an eerie remark in passing, namely that the white minority ruling South Africa handed the country over to a generation of highly westernised black leaders, but that the black leaders of the second generation would commence to eliminate the Afrikaner and Anglo elements from their society.

The main barrier to the so-called elimination of Afrikaner and Anglo cultural elements in society is, of course, the Constitution, which elevates values such as freedom, dignity and equality as core values of our society. To overcome this difficulty, the new and modern ruling elite, whose ideology is to a large degree represented in our tertiary student body, has changed the content of the Constitution, by changing what words like “equality,” “dignity,” “non-racialist” and “non-sexist” means. The courts then proceed to apply legislation which aims to further these aims by the meanings that the politicians give to these concepts. It has been well observed by scholars, like Professor Koos Malan at the University of Pretoria, for example, that the judicial arm of government is loath to differ from the ideological positions of the executive.

The controversy surrounding the Afrikaans, Christian private hostel in Pretoria, De Goede Hoop, unambiguously signals the beginning of the implementation of the new South African narrative. Before reading the rest of this article, take a look at their website and their vision and mission statements. In Afrikaans, they state that they aim to establish a non-racial, non-sexist residence of Afrikaans and Christian students.

This private residence was reported to the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, who indicated that they must scrap the admission requirement of writing an Afrikaans essay to the residence as motivation for one’s admission due to the apparent fact that it causes racial segregation.

Another private, Christian residence, Sonop Tehuis, was banned from all student activities at the University of Pretoria simply for being too white and Afrikaans. In the media, both these entities are essentially portrayed as white nationalist institutions. The respective punitive measures implemented against both entities have been lauded in the media.

I also studied at the University of Pretoria.  They control the racial composition of the university residences by way of quotas. No residence may have less than a certain amount of black students. During my time there, race and language were emotive subjects.  The biggest language group in my residence was by far Afrikaans-speaking individuals, which made up nearly 40% of the residence at any given stage. The remainder of the students were English, Pedi, Venda, Sotho, and Zulu, etc.

The Afrikaans students wished to conduct meetings in Afrikaans but were instructed on a constant basis that all meetings must be conducted in English. This was even the case when 90% of the attendees were Afrikaans-speaking. Especially in ladies residences, students were discouraged from speaking Afrikaans with each other, even when in a lift or a hallway, when a person who is not Afrikaans speaking was nearby.

Expression of religion was also a problem, as all the residents were not Christian. As a consequence, to avoid placing any particular minority group in an uncomfortable position, the university and its management strove to cultivate an English, secular environment.

Due to the above policies, individuals who wished to speak in their mother tongue (if they were not English-speaking) and who wished to practice their common religion openly, were not afforded these privileges. This is understandable to a degree. The university is a public institution, the goods are public goods, and South Africa does not have the expertise, or even possibly the resources, to cater to the preferences of all the individuals attending such a public institution.

As a consequence, individuals who wish to live in an environment where religion and culture are openly practiced has no choice but to start their own private entities to service these needs. Thank goodness for our liberal constitution which protects the right to freedom of association, culture, religion, and expression. Thank goodness for our constitution which protects the right to not be unfairly discriminated against on the basis of their religion, culture or skin colour. The problem is just that this Constitution, somehow, no longer protects these rights. Quite the contrary: it has become a tool to undermine them.

As the scrapping of the admission policies of De Goede Hoop, the banning form university activities of Sonop, the abolishing of the right to mother tongue instruction for Afrikaans students of Kovsies, the possible accreditation issue at the University of Cape Town Faculty of Law along with many other such instances in the last two or three years, prove, there is now a new narrative on the definition of equality, and what non-racialism and non-sexism means. In the past, non-racialism and non-sexism meant that your skin colour or your sex would never be a barrier which would cause you not to enjoy equal protection of the law. It meant that the government would never tell you with whom and whom not you may associate. It meant that you would be free to live your life and exercise your culture and identity.

Equality, non-racialism, and non-sexism now mean that all public and private spaces must reflect the racial and gender composition of the country. If this is not achieved, then the space you are attending is racist and unequal.

With this narrative, a university can lose its accreditation to offer a course because “there is insufficient support for black students” or a student can lose his right to study in his language of choice because offering it has the “unintended consequence” of, apparently, racially segregating the classrooms.

Using this narrative, the courts, public and private institutions will keep targeting and denying the protection of law to communities and groups that attempt to exercise their cultural and linguistic rights. The targeting of private institutions, such as De Goede Hoop, is especially concerning.

Establishing a majority-black, Afrikaans and Christian private residence in Pretoria is nearly impossible due to the demographics of the city and the northern provinces of South Africa in general. Therefore, Afrikaans and Christian individuals who endeavor to sustain and start such an initiative are racist and bigoted. They may not be allowed to do so because we ostensibly strive for equality in South Africa. In South Africa, black people are now the custodians of all culture and religion. People who wish to exercise such rights must ensure that the majority of their membership is black and wishes to exercise their culture or interest as well. Otherwise, this desire is a racist tendency. That is our new right to equality, non-racialism and non-sexism.

Author: Jack Calhoun is the pseudonym of a legal practitioner from Pretoria, who has chosen to remain anonymous.

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