Opinionista Alex Eliseev 3 December 2012

That race card ain’t no trump card

The Gauteng Education Department’s bottoms are still stinging from a Supreme Court of Appeal judgment (a.k.a. spanking) most of us barely noticed. But it’s a massively important ruling that affects every public school in South Africa, will probably land up at the Constitutional Court, and teaches us all a lesson about playing the race card. 

I was covering a story at the High Court in Pretoria when a colleague of mine popped in during a lunch break and relayed a most unusual drama that had just played out in the building. One of the country’s most respected prosecutors – a man who has won international awards for taking on untouchable villains – had found himself the target of a racial outburst from a translator in another trial. 

The story went that, during a break in proceedings, this prosecutor had asked the translator to stop laughing at the testimony being heard and to have a little more professionalism. Admittedly, the testimony was probably amusing, but as an officer of the court, the prosecutor reminded the translator, he should show more restraint. What followed included an explosion of anger and a tsunami of racial accusations. The prosecutor happens to be white while the translator (who took offense at being reprimanded in public) is black. Eventually, in front of everyone, the prosecutor turned around and walked away, while the translator cooled down. It was an ugly scene, but one which is not that uncommon in South Africa. 

I thought about this quite a lot. I know and respect the prosecutor and know that his only possible mistake was to confront the issue in court instead of stepping into a quiet corridor or a back room. I don’t know the translator but his outburst – which involved yelling the K-word – seemed to be a complete over-reaction and a cheap way to avoid the real issue: his behaviour in court.
On Friday, I held in my hand a scathing judgment from the Supreme Court of Appeal in the matter of Rivonia Primary School and the Gauteng Education department. 

I’ll get to the heart of the ruling in a moment, but this is the line that really jumped out at me: “[53] Instead of treating this matter as an ordinary dispute relating to the application of the school’s admission policy the department opprobriously invoked the ugly spectre of race to obfuscate its unlawful conduct”. In other words: The Department played the race card. 

I couldn’t help thinking of the court translator as I read this. If this is happening everywhere from a tiny spat in a courtroom to a multi-million rand battle involving the government, we need to start thinking seriously about how to put an end to it. 

Consider any recent big new story in South Africa. Chances are someone played the race card. The Spear? Nkandla? Pretty much anything Julius Malema says? I read a fascinating story in Time this week called “Africa Rising”, which spoke about the continent becoming a superpower (through the growth of Ghana, Nigeria and Kenya, as well as the shifting dynamics of the world’s natural resources). A few minutes after tweeting the highlights of this story, I was told that the article was nothing more than “nonsensical imperialist rhetoric”. My Twitter rules of engagement are pretty clear and I didn’t enter into a debate. I doubt the author of the accusation had read the article or taken the time to analyse the economic data. Whether Africa is rising or being re-colonised would never have been debated properly with that kind of an attitude. You can’t pull the trigger and then talk. 

In the Rivonia case, what happened was that a black woman wanted to enrol her grade one daughter at the school for the 2011 academic year. She was late in applying and landed up on a waiting list. The school refused to admit her, the mother (believed to be politically connected) ran to the Department, yanked out the race card, took some officials with her and saw to it that her daughter was marched into a classroom. 

I’m cutting a long story short here, but the principal was disciplined for insubordination and the Department claimed that some schools were not prepared to stretch their limits to accommodate children-in-need. 

The Supreme Court of Appeal, however, found the Department had no right to intervene and acted in a “high-handed” and “unlawful” manner. 

It said Rivonia Primary had transformed dramatically from the bad old days and now has a roughly 50/50 split between white and black students. One can argue that this doesn’t represent the country as a whole, but then one has to consider the school’s feeding area. 

But all that aside, the court ruled the school and the area had nothing to do with the case because this “might have occurred at any public school that had a waiting list for admission of learners”. 

The court took into account that Rivonia Primary’s governing body had raised millions of rands to upgrade the school and take in more pupils, and that it had the right to govern itself. 

The Department argues that it has the responsibility to make sure every child in the province has a place to learn and that this right trumps a school’s desire to give a quality education. 

The SCA didn’t take lightly the fact that the girl in this case had already been placed in a private school as plan B, and spoke about how her mother “continued to put pressure on officials of the department”. As a final zinger, it added: “Although the sanctions imposed on Ms Drysdale (principal) are not before us, I am confident the department is sufficiently gracious to withdraw these sanctions in the light of this judgment”

In essence, the judgment finds that a principal, while representing the Department, must abide by the rules of the governing body. And that if the Department accepts the governing body’s admission policy, it can’t then go and flout it a few months later. It is a victory for the autonomy of public schools across South Africa. 

The Department says it’s studying the judgment and hasn’t decided whether to turn to the Constitutional Court. It probably will. And that battle will be absolutely fascinating: the right of a school to give quality education versus the rights of every child to have an education, against a backdrop of “state-run education that can be among the worst in the world” (a quote from that same Time article). Watch this space; you won’t be disappointed. 

The other great lesson here is that the Department bought into the mother’s claim that she was being discriminated against based on her race. That this was a white school that was hell-bent to keep her daughter out. The Department then used this argument to “obfuscate its unlawful conduct” (forgive me, I just can’t get enough of this quote). 

No one in their right mind would ever argue that race is not an issue in contemporary South Africa. We need to keep talking about it and, in cases that warrant it, take action. But the lesson we should all learn from this judgment is that not every foul needs the race card. Sometimes it’s better to deal with the real problem instead. We all know what happens if we cry wolf too many times. DM


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