Advocate GEORGE BIZOS SC on Thursday said it was unfathomable to him how South Africans could show such unimaginable cruelty to people from other parts of the continent. Speaking at a Mail & Guardian and University of South Africa Critical Thinking Forum in Pretoria, Bizos said he thought the word ‘xenophobia’ was misplaced. “This isn’t about fear of foreigners. This is far more malevolent than that: rather, we are dealing here with the hatred of foreigners...” he said. This is the full text of his speech.
(First published in Mail & Guardian)
In the midst of the tumult that is taking place in our country at the moment, it is truly a pleasure to take time to pause and reflect on matters that are important to us, and to think about what advancements we would most like to see in our country. I would like to thank the University of South Africa and the Mail & Guardian for the invitation to be here with you today and to participate in the Critical Thinkers Forum.
The topic that I have been asked to speak on today is “South Africa 20 years after democracy: What does our ethical barometer tell us?” and I will be particularly interested to hear your views on this issue when we move to the panel discussion shortly.
For me, in some ways I think that this question was perhaps easier to answer in the days of Apartheid. The aim was clear; the struggle was simpler to conceptualise; and for the tens of thousands of women and men fighting to overthrow an unjust and oppressive regime, we knew in our hearts that what we were doing was right. However, having achieved the fundamental aims of the struggle, and with the advent of democracy and a democratically-elected government having been the reigning order for the last 20 years, the struggle has become far more nuanced, taking on different shapes in various sectors of society.
The xenophobic attacks that we have seen resuscitated recently have shocked many South Africans, me included, to our cores. It is unfathomable to me how, in a country that has worked so hard to overcome the hatred and indignity of the past, South Africans can show such unimaginable cruelty to our brothers and sisters from other parts of the continent. However, I think the word ‘xenophobia’ is misplaced. This isn’t about fear of foreigners. This is far more malevolent than that: rather, we are dealing here with the hatred of foreigners – as the Greeks would call it, mísos gia tous xénous.
I know all too well what it means to be a foreigner, living in a place that is unfamiliar, speaking a language that is not your own, far away from your friends and loved ones. I came to this country as a refugee, as did members of my family. But fortunately for us, we were welcomed into this country – in school, university and professionally – and South Africa quickly became home to us.
During Apartheid, our fellow African countries gave immense support to the resistance struggle, and South Africa has continued to court a philanthropic and mutually beneficial relationship with our neighbours since the demise of apartheid.
But this has been placed in jeopardy by the behaviour of a small, unidentified group of dissidents who seek to incite poor and disadvantaged young people to commit unlawful and atrocious acts against their neighbours.
President Mandela would have been ashamed of what we are seeing in the country today. However, even amid the horrors of these attacks, we see glimmers of hope. We see people giving shelter and refuge to their neighbours; people assisting to set up temporary living quarters for those who have been displaced from their homes; and various organisations and individuals banding together in marches, vigils and social media to say no to the violence. I was particularly struck by a story I read in the media this week about residents in Alexandra taking it upon themselves to protect foreign shop owners because, as one local resident reportedly commented, “We live together and take them as our brothers… so I don’t see why that must change”.
The people standing up and speaking out against the violence, in some instances at possible risk to their own safety, do so for no other reason than because that is what their ethical barometer tells them is the right thing to do.
In preparing for today, I read several definitions of the meaning of the word ‘ethics’. In virtually all of them, whether in the context of philosophy or business, the meaning fundamentally boiled down to this: a set of moral principles that govern our behaviour. We derive our ethical barometers from various influences. It may be from religious teachings, people you respect, books you read, or from experiences of injustice that have compelled you to treat others differently. I suspect for most of us it is a confluence of factors. For me, I take guidance and solace from the Constitution; for me, the Constitution remains a beacon that offers a guide for the behaviour that is expected of us. And while offering us protection, the Constitution also expects a great deal from us – not just from the state, but from every individual in this country.
In our day-to-day lives, we will inevitably find ourselves grappling with questions of ethics; some answers are clear, but many are complex and multifaceted.
In many cases, not unlike a court, we have to balance competing interests that leave us uncertain about what the right thing may be. I believe that clarity sometimes comes with time and wisdom, but I also believe that the struggle in itself does not make you more or less ethical – it simply makes you human. It is a powerful thing to be able to reason and weigh up these competing interests in a critical way, one that must not be taken lightly.
We have often seen our Constitutional Court grapple with issues such as these, where conflicting interests – a disjuncture between pragmatism and ethics – pose difficulties in the decisions to be taken. Our socioeconomic jurisprudence has certainly highlighted the difficulties intrinsic to this, and we have seen the courts having to manoeuvre the inevitable tension that arises between the achievement of the aspirations of the Constitution and the constraints on the means of the state.
The Soobramoney decision is one such example of this. It was a case that dealt with the ambit of the right to healthcare: Mr Soobramoney suffered from chronic renal failure, and required dialysis to keep him alive; he also required the state to provide this to him because he could not afford it in his personal capacity. The court took note of the disparities in our country, stating that: “We live in a society in which there are great disparities in wealth. Millions of people are living in deplorable conditions and in great poverty. There is a high level of unemployment, inadequate social security, and many do not have access to clean water or to adequate health services. These conditions already existed when the Constitution was adopted and a commitment to address them, and to transform our society into one in which there will be human dignity, freedom and equality, lies at the heart of our new constitutional order. For as long as these conditions continue to exist that aspiration will have a hollow ring.”
However, despite being cognisant to his dilemma and sympathetic to his plight, the court still reached the conclusion that it was not able to come to Mr Soobramoney’s aid, taking into account the various obligations of the state and the constraints on its resources. On this note, it stated that, “One cannot but have sympathy for the appellant and his family, who face the cruel dilemma of having to impoverish themselves in order to secure the treatment that the appellant seeks in order to prolong his life. The hard and unpalatable fact is that if the appellant were a wealthy man he would be able to procure such treatment from private sources; he is not and has to look to the state to provide him with the treatment. But the state’s resources are limited… There are also those who need access to housing, food and water, employment opportunities, and social security.”
One can only imagine how difficult a decision such as this must have been to reach, knowing the consequences of what this will mean for Mr Soobramoney and others who are similarly placed. Other cases, however, have seen more intervention from the court: in the Grootboom case, for instance, our preeminent Constitutional Court decision on the right to housing contained in section 26 of the Constitution, the court also had cause to remind us of the plight of so many South Africans. “The issues here remind us of the intolerable conditions under which many of our people are still living. The respondents are but a fraction of them. It is also a reminder that unless the plight of these communities is alleviated, people may be tempted to take the law into their own hands in order to escape these conditions. The case brings home the harsh reality that the Constitution’s promise of dignity and equality for all remains for many a distant dream. People should not be impelled by intolerable living conditions to resort to land invasions. Self-help of this kind cannot be tolerated, for the unavailability of land suitable for housing development is a key factor in the fight against the country’s housing shortage.”
While the Grootboom judgment came to the assistance of the applicants and found that the state was in breach of the obligations that it owed to them, the court again highlighted the tension between the will to realise the rights contained in the Constitution and the restraint required in taking into account the progressive realisation of rights and the constraints on the state’s resources, stating that: “This case shows the desperation of hundreds of thousands of people living in deplorable conditions throughout the country. The Constitution obliges the state to act positively to ameliorate these conditions. The obligation is to provide access to housing, healthcare, sufficient food and water, and social security to those unable to support themselves and their dependants. The state must also foster conditions to enable citizens to gain access to land on an equitable basis. Those in need have a corresponding right to demand that this be done.”
I am conscious that it is an extremely difficult task for the state to meet these obligations in the conditions that prevail in our country. This is recognised by the Constitution, which expressly provides that the state is not obliged to go beyond available resources or to realise these rights immediately. I stress however, that despite all these qualifications, these are rights, and the Constitution obliges the state to give effect to them. This is an obligation that courts can, and in appropriate circumstances, must enforce.
I have sometimes encountered people who hold the view that nothing has changed – or at least that nothing has changed for the better. To my mind, it is not difficult to highlight the glaring flaws in this view. It will therefore come as no surprise to you that this is not a view that I hold. I am reminded of my standard eight Afrikaans teacher, a man named Meneer Scheepers. At the end of the war, after Germany had withdrawn from Greece, I recall him showing me photographs of emaciated children in Greece and saying to me, “Mr Bizos, I see that your brothers and sisters in Greece are starving”. I replied that my father was working and paying for food, and that I too hoped to contribute when I could. “Bizos,” he said snidely in response, “Not only do we feed you but we’ve also made you clever.” I didn’t know how to respond to that, but another boy in my class took it upon himself to stand up for me, saying to the teacher that he would report him to the headmaster if he did not apologise to me. I don’t know what gave him the courage in that moment to stand up to Meneer Scheepers for me, other than that was what that 16-year-old boy believed was the right thing to do.
(By way of contrast to Mr Scheepers, I recall the difference in approach of my standard 10 Afrikaans teacher, Mr Combrink, who said to me, “Bizos, if you don’t get at least an ‘E’ in Afrikaans, you won’t get into university. I’ve been told that you’re ambitious, but you don’t know where to put the ‘het’ in the past tense, and you don’t know where to put the ‘nie’ in the negative. But I’ll help you: when you’re writing your essays, just make sure you don’t write in the past tense and you don’t write in the negative”. True to his word, I did get an ‘E’ for Afrikaans.)
When we think about what has changed in our democratic era, one example that jumps to mind is that it seems to me that a forum such as this would never have been allowed to take place; critical thinking was certainly not something that was graciously welcomed by the Apartheid state. We have also got to enjoy the benefits of living in a diverse and multicultural society. When I was a first-year law student, in a class of approximately 70 students, there were only four black students and only three women. In one of our first lectures, my professor in jurisprudence told us to look to our left and to our right. He then ominously remarked, “By the end of your studies, only one out of three of you will get a degree. And if you’re a woman, you might as well give up now.” I don’t think we even laughed; we may have smiled, but it didn’t seem that outrageous to us. And as it turned out, he wasn’t far from wrong.
Today, however, we see a different picture. I have spoken at many universities around the country and abroad, and I am always delighted to see a mix of races, men and women, of all different ages making up the student population. I am told that at Unisa, the number of female graduates has consistently exceeded the number of male graduates between 2009 and 2013, due to both higher enrolments and higher course and examination success rates being achieved by females. With regard to race, graduates at Unisa between 2009 and 2013 have been predominately black, with an average year-on-year growth of 14.9%.
Of course, transformation is about more than statistics, and questions of institutional transformation still need to be addressed. This has most recently been thrown into the spotlight by the ‘Rhodes must fall’ movement at the University of Cape Town. As I have previously said, I may not agree with the approach of destroying statues of people who played a role in the history of our country, but I do agree that there is a need for an open and frank dialogue amongst the leaders of higher education institutions and their students about the institutional changes that need to be made.
I believe, however, that our ethical barometer tells us that it cannot be business as usual much longer. There is growing discontentment, and its manifestations are borne out of severe frustration and desperation. We simply cannot proceed to ignore the suffering of so many of our people that continues to take place well into our constitutional democracy. I agree with the Constitutional Court’s observation that the inherited injustices at the macro level will inevitably make it difficult to ensure present-day equity at the micro level. But that comment was made some 10 years ago, and the question now is whether we are doing enough to see equity at the micro level being achieved. And, if not, how do we change that?
I think this begins first and foremost with government. We, as a country, have been waiting for strong leadership to come to the fore and give us guidance in these difficult times. We are waiting for our leaders, in all levels of government, to tell us what plans are in place to effectively combat poverty and shortages in healthcare, housing, education – and then to implement these plans. We are waiting for our leaders to say that they will not stand for corruption and mismanagement, and that they will not tolerate irresponsible government actions any longer. We are waiting for our leaders to give us these reassurances, and then to make good on them. But we are still waiting.
It is unconscionable to me that levels of corruption remain as high as they do.
When we remind ourselves of the words of the Constitutional Court and the dilemma it faced in not wanting to overburden the state financially when considering the realisation of rights, it sickens me to think of the billions of rands that have been lost to corruption and maladministration. It also seems to be that our anti-corruption and crime fighting units appear to be in a state of turmoil at present, and we have failed to create an environment where whistleblowers feel that they are adequately protected in order to be able to come forward freely. It is at least encouraging to hear in the state of the nation address that there have been a number of convictions of members in the public sector who have been charged with corrupt activities, but there is so much more that can and needs to be done.
The challenge is not, however, for government alone. Business also has a role to play – not just in ensuring that they are not complicit in rights violations, but also in taking on an active role to see the realisation of rights. The corporate sector has a responsibility, I believe, to use the immense resources at its disposal to be an instrument of change for the better. It has a responsibility to its employees; it has a responsibility to the communities that are directly affected by its work; but I believe it also has a responsibility more broadly to South Africa to act ethically and proactively to assist the state to achieve the rights contained in our Constitution.
And then, of course, there is a role for each of us as individuals to play. More than ever, we need an active citizenry to challenge the status quo and hold those with power to account. Irresponsible statements and actions from our leaders must not be countenanced. We must act with in accordance with our ethical barometers to expose wrongdoing, seek accountability, and play our part to help to make the lives of others in this country better.
Some of you may be familiar with the words of the interim Constitution in the section dealing with national unity and reconciliation. It spoke of providing “a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence”, and the need for reconciliation and the reconstruction of society. It spoke of a need for understanding but not vengeance; a need for reparation but not retaliation; a need for ubuntu but not victimisation. Most importantly, it spoke about opening a new chapter in the history of our country.
I believe that given where we had come from and the uncertainty of the path that lay ahead, these ideals were a high watermark of our ethical barometer at the time. It was a commitment from South Africans to work towards healing the divisions of the past because we believed that it was ethically and morally the proper way forward. It is a commitment that I believe many of us still uphold, even in the face of other challenges that have come to the fore. The 27th of April, a holiday which we will enjoy in just a few days’ time, is for me one of the most important dates in the South African calendar: 21 years since we cast our first ballots in a democratic process. I hope that you will take time to reflect about what that has and will continue to mean for you.
We are so fortunate to live in the South Africa we do today. Twenty-odd years ago, a country like this was but a dream. Today, we enjoy a rights-based constitutional democracy premised on the values of human dignity, the achievement of equality and the advancement of human rights and freedoms. We enjoy an independent judiciary, powerful guardians of the Constitution, strong education institutions, and a robust civil society, all of whom – together with so many others – strive on a daily basis to make this country better and achieve our constitutional ideals. We may want some of our institutions to work better, but I believe that they are working.
We have so much to be proud of in this country, and this is something that must not be forgotten or taken for granted. This must also not be enjoyed at the expense of others. Perhaps now more than ever, we need to remind ourselves of the spirit of ubuntu. As our Constitutional Court has previously held, “The spirit of ubuntu, part of the deep cultural heritage of the majority of the population, suffuses the whole constitutional order. It combines individual rights with a communitarian philosophy. It is a unifying motif of the Bill of Rights, which is nothing if not a structured, institutionalised and operational declaration in our evolving new society of the need for human interdependence, respect and concern.”
Photo: George Bizos (Greg Nicolson/Daily Maverick)
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