It is understandable (if not ethically acceptable) that some (but not all) white South Africans (who all continue to benefit from the effects of past unfair racial discrimination) would try to protect their unearned privileges by fighting to retain the status quo. At Stellenbosch University, members of this group are fighting a rear-guard action to try and block the full racial and linguistic integration of University residences. Unfortunately they are whipping up racial and jingoistic sentiments among former Stellenbosch students by making a demonstrably false claim that proposed measures to integrate University residences would be in breach of the Constitution.
Like many other old (and in some circles highly regarded) institutions in South Africa, Stellenbosch University has a long history of racial discrimination and exclusion which was aimed at benefiting white Afrikaners and punishing and disadvantaging black people. Until the 1980s, the University was exclusively reserved for white students and until the 1990s residences were racially segregated. In the late 1980s some of us were threatened with expulsion for taking part in a protest march in support of racial integration of University residences. In other words, for many decades Stellenbosch University implemented race-based affirmative action policies to benefit white Afrikaners, many of whom unfairly gained access to an excellent University education at the expense of members of other races.
Stellenbosch University is not unique in this regard. Many other institutions dominated by those who benefited or continue to benefit from the effects of past racial discrimination (including all the so called “liberal” former “white” Universities), have the same history. I discuss the Stellenbosch situation here only as a case study of a larger problem.
Ironically, many of the children and grandchildren of those white Afrikaners who benefited from unfair racial discrimination in the past and who, in turn, today enjoy educational and financial privileges because their parents benefited from racial oppression and discrimination, now fight against the implementation of redress measures in the name of non-racialism. Talk about Orwellian double-speak. They insist on the retention of a system that would reward the skills, privileges and benefits they acquired through the Apartheid system of racial discrimination, while arguing that it would be fair to continue punishing those who could not acquire the same skills, benefits and privileges because they were subjected to racial discrimination and oppression by some of the very people who studied at Stellenbosch University.
This stance is both immoral and, it must be said, in the South African context utter legal nonsense.
The opponents of integration (using the language of non-racialism and “cultural rights” to fight for the retention of their continued racial privilege) argue that a revised draft policy of the University aimed at improving the diversity profile of University residences “discriminates unfairly on the basis of one or more factors, including but not limited to race, ethnic or social origin, colour, age, culture and/or language” because it amounts to the “imposition of quotas based on race and/or language” and is “in conflict with the right of people who belong to specific language and cultural communities to use that language and culture”. They are hoping that an extraordinary meeting of Stellenbosch graduates will vote against this policy to place political pressure on management to drop the integration scheme.
The draft policy states that “in the first round” when first-year students are placed in University residences, the applicants will be placed in residences “on the basis of academic merit”. To achieve the diversity profile targets for residences (set by management every year), five “diversity factors” will be taken into account:
“(1) South African citizen or international student; (2) language preference (Afrikaans, English or Other); (3) ethnicity (Coloured, Black, Indian or White); (4) first- or non-first-generation student; and (5) economic class (for students who need financial support in the form of bursaries and who qualify for such support on the basis of a means test).”
A previous version of the policy stated that the ideal racial breakdown of residences should be 35% “brown”, 20% “black”, 40% “white”, 5% “Indian”. It also gave a language breakdown as 45% Afrikaans, 40% English and 15% other.
Of course, there is nothing in the Constitution (or in the Promotion of Equality and Prevention of Unfair Discrimination Act, which will apply in this case) that prohibits an institution from imposing quotas on the basis of race or language in order to address the effects of past and on-going discrimination and to achieve integration. The Employment Equity Act does prohibit the implementation of quotas but that Act would not be applicable to a scheme addressing the integration of University residences. A reference to quotas is therefore at best uninformed and at worst dishonest.
In the case of Minister of Finance v Van Heerden the Constitutional Court provided guidance about how to evaluate the lawfulness of redress measures. In that case the court affirmed that courts “must be reluctant to interfere with [remedial] measures, and [must] exercise due restraint when tempted to interpose themselves as arbiters as to whether the measure could have been proceeded with in a better or less onerous way”. The Court also affirmed that remedial measures will necessarily sometimes negatively affect excluded groups (like white South Africans) who are currently enjoying the benefits of past unfair discrimination and that this would not be decisive when considering whether the measures are legally valid or not.
Of course, it is not only those whites who grew up during the Apartheid years that continue to benefit from Apartheid vis-à-vis black South Africans. Almost all if not all of the children and grandchildren of Apartheid beneficiaries are still benefiting from Apartheid because they enjoy a certain standard of education, a social status and other benefits derived from the unearned economic privileges of their parents and grandparents and because of their white skins that still largely shield them from the daily racism experienced by many black South Africans. After all, there are few white teenagers who dress up in their best clothes when they go to the Waterfront or Sandton City to protect themselves from the racial prejudices of shop assistants or security personnel who might otherwise assume that they are shoplifters or vagabonds.
It is also wrong to assume that a white person who did not flourish during Apartheid did not benefit from the system. As the system shielded all white people from having to compete against the majority of South Africans for educational opportunities, jobs and other social benefits, even white South Africans who did not become rich during Apartheid still benefited from the system because they never had to compete fairly with the 40 million other South Africans for educational and employment opportunities.
Nevertheless, it must be conceded that not all redress measures will be legally valid. In the Van Heerden case Moseneke stated that “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.” In a concurring judgment Sachs explained this approach as follows:
“[I]f the measure at issue is manifestly overbalanced in ignoring or trampling on the interests of members of the advantaged section of the community, and gratuitously and flagrantly imposes disproportionate burdens on them, the courts have a duty to interfere. Given our historical circumstances and the massive inequalities that plague our society, the balance when determining whether a measure promotes equality is fair will be heavily weighted in favour of opening up opportunities for the disadvantaged… Yet some degree of proportionality, based on the particular context and circumstances of each case, can never be ruled out.”
The requirement that there should be a degree of proportionality between the measures and the effect of the measures on the excluded group must not be confused with a requirement of a blanket ban on redress measures. Only in extreme cases will redress measures be found to be unlawful. For example, a quota system will place an undue burden on white Afrikaners and will impose flagrantly disproportionate burdens on them if it completely ignores the so-called “merit” (as we know, “merit” is a deeply contested term in a diverse society) of the white applicants or if it made it impossible for any of them to access the benefit that forms the target of the corrective measures. So, if the University of Stellenbosch had implemented a redress policy that disbarred any white Afrikaans students from admission to a University residence, its policy would constitute unfair discrimination. But this is not what the University is proposing here.
The Constitution does not allow those who continue to benefit from past unfair racial discrimination to insist on the retention of the status quo. Neither does it protect white Afrikaners from having to integrate socially with a critical mass of people from other races and language groups while dishonestly pretending that they are merely upholding the values of non-racialism. You might not like this incontrovertible fact. But you cannot pretend that the Constitution or the law is on your side. It is not. Those who hold otherwise are not being honest. DM
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Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.
"Look for lessons about haunting when there are thousands of ghosts; when entire societies become haunted by terrible deeds that are systematically occurring and are simultaneously denied by every public organ of governance and communication." ~ Avery Gordon