Silences are sometimes more telling than speeches. One of Sherlock Holmes' most famous cases concerned the dog that didn't bark at night. Holmes realises that this very silence is a telling clue, pointing to the guilt of the dog's owner. There was such a silence in South Africa last week when the Constitutional Court ruled in the Renate Barnard case in favour of racially discriminatory practices aimed at whites. Ms Barnard had repeatedly come top of her police assessments but been denied promotion because of the colour of her skin.
It was a quite extraordinary ruling not only because it was so obviously unfair to Ms Barnard and so clearly destructive of police morale and competence but because in effect it left troubling questions as to whether whites (and potentially other groups) were really equal under the law. In addition, of course, it comes at a time when courts all over America have been moving clearly and strongly in the opposite direction, ruling that affirmative action programmes which conflict with individual rights are nor sustainable.
Thus in June 2006 the US Supreme court ruled in Parents v Seattle and Meredith vs Jefferson that it was unconstitutional to consider race when assigning students to schools. In November 2008 the state of Nebraska voted to abolish all forms of affirmative action based in race or gender. In June 2009 in Ricci vs De Stefano in Connecticut there was an exact analogue of the Barnard case in South Africa when 18 firefighters took New Haven Fire Service to court because they had thrown out the results of exams for captain and lieutenant because it would have meant the promotion of "too many" whites and Hispanics. The court ruled that this was illegal, that the exam results must be reinstated and that promotions must be on merit. Most recently, in April 2014 in Schutte vs. Coalition to Defend Affirmative Action the court decided in favour of Michigan state's decision not to consider race in college admissions.
What this makes clear is that our Constitutional Court, as presently constituted, is a very odd body indeed, ruling that what is fair in America is unfair here. It is a completely parochial body, quite happy to be the only court in the world ruling openly in favour of racial discrimination out of a dubious belief in South African exceptionalism. No doubt the Court would, if it felt like it, rule that the law of gravity should not apply in South Africa. Given the history of South Africa, the long and bitter struggle against racial discrimination, and Mandela's that "never and never again" would such practices be allowed to besmirch this country, the Court's decision means a studied refusal to learn from the past, indeed it means a return to that past. By this decision the Court has lost much of its claim to public respect.
The silence that is so telling and so disgraceful is that of the official Opposition. Throughout its history from 1959 on the Progressive Party and its various incarnations since then would all have protested bitterly against such a decision and led a campaign to reverse it. Yet today's DA has nothing at all to say. This is the direct result of its abandonment of liberal principles, of Helen Zille's suggestion that the time-honoured Prog slogan of "Merit, not Colour" was itself racist.
The DA's failure to stand up for the principles of fairness, merit, equality under the law and against racial discrimination show all too graphically how completely the party has lost its moorings. Moreover, in the past, one suspects, such events would have led to vigorous and open debate within the party, resolutions moved at provincial conferences and the like. The party did not use to be so sheep-like. This unhappy silence suggests that something has gone badly wrong within the party.