THE FREEDOM FROM UNFAIR DISCRIMINATION IN A NON-RACIAL DEMOCRACY

In his article of 15 August Prof Pierre de Vos ascribes attitudes to the Foundation that it does not hold and that cannot be deduced from its response to Archbishop Tutu's recent call for white South Africans to pay a reparations wealth tax (see here).

We do not oppose the initiative because we wish to defend the "economic interests of white people", as De Vos claims,  but because we believe that that such a race-based reparations tax would undermine the principle of non-racialism and foundational rights to equality and human dignity.

De Vos pours scorn on the Foundation's view that one of the principles upon which our society is based is non-racialism and that "we should no longer adopt laws that are aimed at one or another racial group." We based our view on a face value reading of the Constitution's founding principles; on our association with the process that led ultimately to the adoption of our non-racial Constitution; and on Section 36 which provides that "the rights in the Bill of Rights may be limited only in terms of a law of general application (i.e. applicable to all South Africans regardless of their race) to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom..."

De Vos, on the other hand, bases his support for the re-racialisation of our society on the Constitutional Court's 2004 judgment in the case of the Minister of Finance and Other v Van Heerden which dealt with the pension rights of pre-1994 parliamentarians.

The judgment, written by Deputy Chief Justice Moseneke is, indeed, singularly devoid of any concern for the constitutional rights of the white people. He goes through a number of judicial contortions to exclude the right of white citizens to protection against unfair discrimination in Section 9(3). He comes up with the remarkable idea that all and any discrimination against whites in terms of 9 (2) is fair provided only that it is not so egregious that it would threaten the long-term achievement of equality.

Moseneke posits three criteria to determine whether affirmative action measures may be taken in terms of Section 9 (2): does the measure target persons or categories of persons who have been disadvantaged by unfair discrimination? Is the measure designed to protect or advance such persons or categories of persons? And does the measure promote the achievement of equality?

In terms of these criteria the state would theoretically be able to deprive whites of property and income and abridge their rights - possibly to the point where a broad level of equality is established with all other population groups.

However, it is one thing to use Moseneke's reasoning to address, on a non-racial basis, the relatively trivial issue of the pension rights of pre-1994 politicians.  It is quite another to use it to strip millions of South African citizens of their constitutional protection against unfair discrimination, solely on the basis of their race.

It must be evident that efforts to justify unfair discrimination against anyone would negate their right to equality before the law in Section 9(1) and to the full and equal enjoyment of all rights - including their right to human dignity - by which equality is defined in Section 9(2).

Such action would thus fail Moseneke's own internal test of promoting the achievement of equality - since, logically, the achievement of equality for some cannot be realized by negating the right to equality of others.

De Vos should know that the rights to human dignity and equality with respect to unfair discrimination are so fundamental that they are regarded as non-derogable, even in a state of emergency.

Although Judge Sachs supported Moseneke's judgment, he evidently had some qualms about his open-ended rejection of the constitutional right of white people to protection against unfair discrimination within the context of Section 9(2). In his minority judgment he commented that the Court's commitment to the values of non-racialism clearly does not "allow section 9(2) to be interpreted in a way which says: provided the measure affecting the advantaged persons (whites, men, heterosexuals, English-speakers) is designed to advance the disadvantaged, the former can be treated in an abusive or oppressive way that offends their dignity and tells them and the world that they are of lesser worth than the disadvantaged."

This is precisely what Archbishop Tutu's proposed racial wealth tax would do. The amount of such a tax is irrelvant. The primary problem is that it would stigmatise citizens on the basis of their race. By so doing it would "offend their dignity" and tell the world that "they are of lesser worth than the disadvantaged".

It is also difficult to see how such a tax could be imposed without resorting to some form of racial classification. This would clearly be a fatal blow to the principle of non-racialism equality upon which our new society is founded.

There should be no internal conflict between the founding principles of human dignity, the achievement of equality and the advancement of human rights and freedoms. We cannot advance the equality of some by denying the human dignity, equality and rights of others.

The Foundation has always forthrightly supported section 9(2) and the need for legislative and other measures to promote the achievement of equality.  However, it should by now be perfectly obvious that the affirmative action and BBBEE measures adopted by the state have singularly failed to promote equality throughout our society.

They have benefited 10 - 15% of the black population but have done nothing at all to promote the equality of the poorest 60% of the population. After 17 years we remain as unequal a society as we were in 1994.

The problem is not 9(2) but the measures that the state has used to promote equality. It should instead have concentrated its efforts on empowering all South Africans through decent education; effective service delivery and job creation.

All South Africans - black and white alike - should support an inclusive national effort to achieve these goals. Such an approach to the achievement of equality would stand a much greater chance of success than the racially divisive, unfair and retrogressive approach that is evidently favoured by De Vos.

Dave Steward is Executive Director of the FW de Klerk Foundation

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