In a recent article (“From the Inside: A Tale of Two Meetings”, Daily Maverick, 27 August), Helen Zille describes her engagement with members of Dagbreek, one of the male residences at Stellenbosch University, who invited her to speak at the launch of a booklet titled Inkululeko – Talking Freedom. She applauds the Dagbreek students with whom she met for their courage. They dare to speak and write, even though they are white, and “refuse to be banished to the ‘Republic of Silence’ ”. They dare to resist the oppressiveness of political correctness and identity politics that have become pervasive on campuses. They, rather than the university’s transformation office, are the true champions of the freedom enshrined in the Constitution. They defend that freedom not in the name of white identity politics, but on the basis of liberal values. She writes:

“They are determined to evaluate each person in terms of who they are, the content of their character, not the colour of the skin or the combination of their chromosomes”.

The Dagbreek booklet is a response to a glossary, titled Siyakhula – Talking Transformation, published by the university’s transformation office in early 2018 under the thrust of the university’s transformation plan. The glossary contains explanations of a variety of terms often used in transformation discussions, including, for example, “intersectionality”, “othering”, “white privilege”, “structural oppression”, “gender identity” and “intersex”.

The Dagbreek booklet criticises the list of definitions as “a means of entrenching, through the use of language, a world view intolerant of alternative analysis or challenge”. It argues that the glossary is steeped in critical theory and identity politics, which are the enemies of an open society based on freedom and the rule of law. This is because “Marxism, and its variants – for example critical theory and identity politics”, aim to establish the hegemony of an “ideologically acceptable collective”, and seek to inhibit the freedom of those wishing to challenge “the truth”, as it is defined by the collective. According to the booklet, critical theory reserves the right to participate in discussions for members of certain racial and sexual groups, and declares white heterosexual males as the enemy.

Zille wholeheartedly endorses this narrative. She argues that Talking Transformation is “a thinly disguised imposition of the latest iteration of Marxist dogma”, as supplemented by the ideology of identity politics. It is inconsistent with the rights and freedoms enshrined in the Constitution, as it judges individuals on the basis of immutable biological attributes (what they are), rather than on the basis of who they are. The Constitution was meant precisely to bring an end to this type of hegemonic politics. And yet, the “race-gender-sexuality warriors” on university campuses “seek to snatch defeat from the jaws of victory” through their identity politics and insistence on the “intersectionality” of disadvantage.

We find Zille’s argument crude and unconvincing. It rests on a reductionist view of the Constitution, an unhelpful caricature of critical theory, and a complete misreading of the social context and power relations on the Stellenbosch University campus. Before making these points, though, let us first state unequivocally that we believe that it is vital that a diversity of voices must be heard in debates on transformation; and that, like everyone else, white heterosexual males and social conservatives have the right to participate in those debates. The remedy to the falsities contained in the Dagbreek booklet and in Zille’s comments lies not in censorship, but in rigorous debate and contestation.

First, the Constitution. Zille’s characterisation of the Constitution as rejecting any reliance on groups-based disadvantage might have had a measure of plausibility if it were the constitution of the US she referred to. That constitution is sometimes said to be “colour-blind”, and to be based on a formal, rather than a substantive concept of equality.

However, the South African Constitution is different. It commits us to a non-racial and non-sexist society, and aims to free individuals from the shackles of narrow social categories that, in the past, determined their destiny. At the same time, however, the Constitution recognises the need to redress the inequalities of the past.

To that end, section 9(2) authorises differential treatment, provided that the measures in question are designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination. Section 9(3) filters complaints of unfair discrimination through categories like sex, gender, sexual orientation, religion, age and disability. And section 16(2) excludes hate speech based on race, ethnicity, gender or religion that constitutes incitement to cause harm from the protection given to freedom of expression.

The Constitution thus requires us to be both conscious of the lingering effects of institutionalised racism, sexism and other forms of prejudice, and to create a society in which those categories will no longer narrowly circumscribe individuals’ life chances. This tension disappears in Zille’s account — for her, any attempt to come to terms with group-based disadvantage amounts to a pernicious form of identity politics, which subjugates individual freedom to the tyranny of narrow social categories.

Zille clearly privileges negative over positive freedom. She clings to the idea that state repression and social intolerance are the main enemies of freedom, and ignores the ways in which structural inequality and material disadvantage impede the realisation of basic rights and freedoms. This seems to be at odds with the Constitution.

The Constitution guarantees civil and political as well as socio-economic rights, recognises that the state has a duty not only to refrain from infringing those rights, but also to protect and promote them, and provides for the horizontal application of rights. It thus accepts that threats to individual rights and freedoms can take various forms, and guarantees negative as well as positive liberty. (The jurisprudential and practical importance of these features of the Constitution’s conception of rights was stressed by Justice Madlanga of the Constitutional Court in his address at the Annual Human Rights Lecture in the Faculty of Law at Stellenbosch University on 28 August 2018.)

Zille recognises, with reference to the words of Coretta Scott King, that “freedom has to be fought for, and won again, in every generation”. However, because she clings to a restrictive understanding of the threats against individual rights and liberties, she takes an exceedingly narrow view of the social struggles through which rights are enacted and re-enacted. It is, apparently, only struggles that are fought in the name of the “neutral” and “universal” liberal subject that qualify.

By contrast, struggles that are waged against institutionalised racism or sexism, or against the exploitation of the poor, should be viewed with the greatest suspicion. Most likely, they seek to establish the hegemony of particular classes or categories of people, and to curb the freedom of others. It is no wonder, then, that she portrays white, privileged, heterosexual males in Stellenbosch who resist the language of transformation as the true champions of freedom. They are, after all, unencumbered by institutionalised racism, sexism and classism, and appear as “neutral” liberal subjects who can afford to stake their claims in ways that erase, rather than highlight, their racial, gender, sexual and class identities.

Her argument thus provides a striking illustration of the capacity of a certain type of liberalism to privilege the experience of certain groups, and to deny the lived reality of those who do not conform to their ideal image.

Second, Zille unquestioningly draws upon the Dagbreek booklet’s characterisation of critical theory. The result is a curious mix in which Marxism and every conceivable form of “leftist” identity politics combine forces to repress individual rights and freedoms.

Never mind the considerable tensions that exist between old-style Marxist struggles, with their emphasis on redistribution, and contemporary struggles for recognition.

Never mind the considerable differences of opinion among different feminists, critical race theorists, queer theorists and decoloniality scholars. On the pages of Zille’s article and the Dagbreek booklet, the Swart Gevaar and Rooi Gevaar combine seamlessly with other dangers, like the Pienk Gevaar, to establish a new hegemony and to silence critics.

Zille, like the Dagbreek booklet, equates critical theory with a form of identity politics that conditions the right to speak on membership of particular groups. Again, this is an ahistorical and unwarranted generalisation.

Historically, many feminists have rallied against forms of gender essentialism that mark out the social roles of men and women in ways that deprive women of meaningful participation in the economic and political spheres. To employ sex and gender as central categories of analysis does not necessarily amount to a crude form of essentialism (or of identity politics, as Zille understands the term). In fact, it is often a way of resisting it.

The same goes for race. Critical race theorists have challenged the view of racism as a rare exception to the rule. Instead, they have sought to show that it is deeply ingrained in legal and social systems. But to argue that racism is systemic, and that its machinations are concealed by the myth of a colour-blind meritocracy, is not necessarily to fall into the trap of racial essentialism, or to deny that race is a social construct. It is also not to assert that only black people have the right to speak.

The point, for many critical race theorists, is that the privileged strata of society already have the capacity to make their voices heard. And that, by contrast, sections of the population that are affected by material disadvantage and by systemic discrimination in education, the formal economy, the criminal justice system and other sectors of society, are effectively deprived of the right to participate, as citizens, in the public-political sphere.

The Constitution itself appears to take many of these critical-theoretical insights on board. For instance, the substantive notion of equality enshrined in section 9 has been influenced by the work of feminists. Section 9(3), which refers to discrimination on one or more of the listed grounds, also leaves room for the consideration of the intersectionality of disadvantage.

Unlike Zille, who considers intersectionality a dirty word, many academics and social activists view it as an indispensable conceptual tool in trying to come to terms with the multiple and overlapping layers of disadvantage and domination experienced by, say, black women or refugee women.

For instance, Azille Coetzee has recently written that the relegation of black women under colonialism and apartheid to something less than fully human, and as not in full control of their own bodies, lives on to this day. To make sense of their disadvantage, we need to come to terms with the multiple ways in which institutionalised racism, patriarchy, racial capitalism and structural violence reinforce one another.

Third, Zille misreads the social and historical context at Stellenbosch University, as well as the power dynamics on campus. Stellenbosch University, more than any other university in South Africa, was a training ground for the architects of apartheid. Six of the eight prime ministers of apartheid South Africa studied at Stellenbosch University, and some of them were later also associated with it as lecturers (Verwoerd), chancellors (Malan) or recipients of honorary doctorates (Smuts, Malan, Verwoerd and Vorster).

The university benefited directly from the apartheid government’s policies when it acquired some of the land, in a neighbourhood formerly known as “Die Vlakte”, from which coloured and Indian communities were forcibly removed. Black students were excluded from the university. Even after 1994, the student body remained predominantly white, presumably because of the language policy at the time and the hegemony of white Afrikaans culture.

Today Stellenbosch University is, in some respects, more representative. And yet, its history of discrimination and exclusion is still visible in the physical spaces and power relations on campus. Visitors often comment on the “European” feel of its surroundings. Faculties and residences are far from fully transformed, and the composition of higher decision making bodies such as the rectorate and senate is still heavily slanted in favour of white males. (That such imbalances still exist is recognised in the transformation plan, which states that Stellenbosch University recognises that “past racial discrimination in South Africa (through legislative means) translates into continuing disadvantage in the present”.)

It is preposterous to suggest, as Zille does, that Stellenbosch University students’ freedom of expression and right to self-realisation are threatened by a new hegemony that is spearheaded by the transformation office. The purpose of the Talking Transformation booklet is not, as she claims, to silence or victimise white heterosexual males, or to inculcate a stifling political correctness.

It is, rather, to provide working definitions for concepts that have increasingly been used in higher education since the #RhodesMustFall and #FeesMustFall movements. It is also to stimulate contestation and debate, and to help provide a vocabulary to describe the experiences of those who were marginalised in the past, and who continue to be ignored in spaces beset with institutional biases.

Zille and the drafters of the Dagbreek booklet are, of course, free to question whether these concepts can truly shed light on the power dynamics on campuses. To do so, however, they need to engage in analysis, rather than simply indulge in conspiracy theories and over-simplifications. Sadly, Zille’s (mis)understanding of the Constitution, critical theory, and the social context has the potential to contribute to the continued silencing of those who were not welcome at Stellenbosch University during the apartheid era. DM

Henk Botha is a professor in the Department of Public Law at Stellenbosch University, where he teaches legal philosophy and interpretation of enacted law.

Bradley Slade is an associate professor in the Department of Public Law, Faculty of Law, Stellenbosch University, where he lectures constitutional law.