A shallow argument not entirely based on the facts

The FW de Klerk Foundation’s Executive Director, Dave Steward, has responded to a previous post on this Blog in which I argued that the imposition of a wealth tax would probably be constitutionally valid and criticised the Foundation for stating that our Constitution prohibits laws that distinguish between people based on race. In the interest of open and frank debate I posted the reply in the Seminar Room and I invite readers to study this response.

Unfortunately the response is not as rigorous and informed as it could have been. But the debate will not be taken further if I did not show the Foundation the curtesy of engaging with its response, something I am happy to do below.

The Foundation admits that it based its original response “on a face value reading of the [relevant sections of the] Constitution” and not on the interpretation of those provisions by our Constitutional Court, which is the body that definitively interprets the provisions of the Constitution. This was, of course, an oversight by the Foundation as the provisions of the Constitution can only properly be understood with reference to the binding interpretation of the relevant provisions by the Constitutional Court. Relying on an ostensible “face value reading” of the provisions of the Constitution is a rather risky exercise as one then assumes that one’s own supposedly common sense interpretation trumps the authoritative interpretation provided by our highest court.

The Foundation then proceeds to make the following statement:

The judgment [in the Van Heerden case], 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.

This statement is surprising and, I have to say, in my opinion not entirely in line with the facts.

First, the claim that the judgment shows no concern for the constitutional rights of white people is impossible to square with the judgment of Deputy Chief Justice Moseneke. As anyone familiar with the judgment would know, Moseneke’s judgment does display concern for the rights of white people – although the concern might arguably not meet the special standard expected by the FW de Klerk Foundation.

I would argue that justice Moseneke engages in a serious and responsible manner with the question of redress by taking the text of section 9 of the Constitution seriously and by trying to balance the constitutional demand for racial redress with the constitutional demand to respect and protect the rights of everyone – including, obviously, white South Africans. The Foundation might feel aggrieved that this balance was not struck differently, but implicitly claiming that no balance was struck at all is at best misleading and at worse an outright falsehood.

Justice Moseneke makes the entirely uncontroversial point (quoting from the Bato Star judgment written by former Chief Justice Sandile Ngcobo) that:

In this fundamental way, our Constitution differs from other constitutions which assume that all are equal and in so doing simply entrench existing inequalities. 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.

As all the judgments in the Van Heerden case make clear, this will sometimes require the imposition of race-based corrective measures. I think the judgment of justice Yvonne Mokgoro (agreeing with justice Moseneke) expresses this idea most crisply:

Another aspect of section 9(2) is that it allows a person or categories of people to be advanced. This is important because of the nature of the unfair discrimination that was perpetrated by apartheid. The approach of apartheid was to categorise people and attach consequences to those categories. No relevance was attached to the circumstances of individuals. Advantages or disadvantages were metered out according to one’s membership of a group. Recognising this, section 9(2) allows for measures to be enacted which target whole categories of persons. Therefore a person or groups of persons are advanced on the basis of membership of a group. The importance of this is that it is unnecessary for the state to show that each individual member of a group that was targeted by past unfair discrimination was in fact individually unfairly discriminated against when enacting a measure under section 9(2). It is sufficient for a person to be a member of a group previously targeted by the apartheid state for unfair discrimination in order to benefit from a provision enacted in terms of section 9(2).

No one can surely deny that black people were previously targeted by the apartheid state for unfair discrimination. This means that race based measures aimed at addressing the effects of these apartheid policies will be permissible and will, indeed, sometime be required. But this is not the end of the enquiry, as justice Moseneke made clear that the measures that are aimed at redressing the effects of past racial discrimination and which are aimed at black South Africans may not be abused. Courts must therefore also consider the rights and interests of those not targeted to benefit from the redress (in others words, the very white people whose rights the Foundation wrongly claims justice Moseneke is not concerned about).

This must be done by focusing on the effect of the corrective measures on the group that is not benefiting from the redress measures. As Justice Moseneke stated in the judgment:

However, it is also clear that the long-term goal of our society is a non-racial, non-sexist society in which each person will be recognised and treated as a human being of equal worth and dignity. Central to this vision is the recognition that ours is a diverse society, comprised of people of different races, different language groups, different religions and both sexes. This diversity, and our equality as citizens within it, is something our Constitution celebrates and protects. In assessing therefore whether a measure will in the long-term promote equality, we must bear in mind this constitutional vision. In particular, a measure should not constitute an abuse of power or impose such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal would be threatened.

Although the FW de Klerk Foundation may argue – wrongly in my view – that Justice Moseneke’s judgment fails to show sufficient concern for the rights of white people, the claim that it shows no concern is therefore clearly false. One hopes that a retraction in this regard will be forthcoming. The interpretation provided by Moseneke does not strip white people of their rights. Where, to use an extreme example, Parliament passed legislation that prohibits all employers from promoting white candidates for the next 20 years, such a provision would clearly be unconstitutional as it would impose an undue burden on white South Africans.

My view is that a one-off tax aimed at redress would not impose such an undue burden. The almost negligible effect of the imposition of such a tax is neatly illustrated if one recalls that wealthy Germans (initially almost exclusively living in Western parts of Germany) have been paying a solidarity tax of up to 5.5% since 1991 in order to finance the reconstruction of East Germany. This money is directly transferred to states in the Eastern parts of Germany. It disproportionately affect West Germans, but so far I have not read anything suggesting that Germans living in the Western part of their country are rioting or are arguing that the tax demeans them or undermines respect for their human rights. That may be why the German Constitutional Court has also declined to hear a petition from a lower court on this matter.

The Moseneke judgment is therefore clearly in line with the views of Sachs, quoted approvingly by the Foundation, that to “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.” Moseneke does not interpret section 9(2) in that way – that is why Sachs concurred in the judgment of Moseneke.

Second, the idea that it might be acceptable for one group (in this case whites) to be treated differently from another group (in this case blacks) in order to achieve the realisation of substantive equality is not remarkable at all. The Supreme Court of Canada as well as courts in many other constitutional democracies embrace this idea. Apart from the US Supreme Court – who is working with a text that is more than a hundred years old – there are very few courts in modern constitutional democracies who do not embrace the substantive notion of equality postulated by Moseneke, Mokgoro, Sachs and Ngcobo (and indeed endorsed by all the other judges of the Constitutional Court) in the Van Heerden judgment.

The notion is also accepted in international law, as a quick perusal of the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women, the jurisprudence of the UN Human Rights Committee, the UN Committee on Economic Social and Cultural Rights and many other quasi-judicial convention bodies required to interpret international human rights treaties will attest.

Anyone familiar with academic writing in the field of equality law will also know that this idea is not remarkable at all and that it is widely embraced and discussed by legal academics and philosophers. A quick perusal of the South African Journal for Human Rights (SAJHR) would have revealed to the Foundation that academics from all over South Africa, as well as academics from other (far from radical) universities such as Oxford, have recently published admirable articles about this concept. Probably the most famous and influential living legal philosopher (and by no means a radical ivory tower academic), Rondald Dworkin, has also written admiringly about this idea.

Now, the FW de Klerk Foundation may want to argue that the conventional wisdom on equality law is wrong and that we should rather turn the intellectual clock back 50 years and embrace a formal notion of equality. Or it may want to make more nuanced arguments – as Prof Henk Botha of Stellenbosch has done in an admirable and thoughtful article published in the SAJHR – about the paradox at the heart of modern equality law, namely that in order to remedy discrimination and redress disadvantage, we have to invoke broad social categories and identities (such as race) which are themselves implicated in relations of inequality and subordination.

Sadly the Foundation did not do any of the above, but instead relied on “common sense”, which sometimes is another word for the shared prejudices and blind-spots of an insular group of privileged but out of touch individuals trying to protect their own interests. The response of the Foundation therefore represents a lost opportunity to engage in an informed and considered manner with the difficult questions around race, redress and equality. Maybe it might want to take another stab at it and produce a more thoughtful and intellectually honest and rigorous argument. I would again be happy to publish it on this Blog in the interest of vigorous and hopefully informed debate.

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