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South Africa’s unravelling constitutional dream

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In real life, Professor Balthazar is one of South Africa’s foremost legal minds. He chooses to remain anonymous, so it doesn’t interfere with his daily duties.

This column has previously warned that there is a prevailing political and social discourse which is at war with the fundamental idea promoted by the Constitution of South Africa of developing into a non-racial, non-sexist country.

The argument which was then advanced was that all the major political parties had comported themselves in a manner which undermined our most important constitutional commitments:

  • The ANC housed a coterie of rent-seekers whose main project was to enrich themselves and their cronies at the expense of millions whose desperate living conditions could have been significantly improved by the billions of taxpayer money that was siphoned off to the rent-seekers;
  • The DA refuses to take race into account as a key basis for reconfiguring the country in which race continues to define privilege and disadvantage and where s9 of the Constitution expressly contradicts the DA stance;
  • The EFF’s crude populism would, given half a chance, replace the present Constitution with a Chavez-type Venezuelan model.

Regrettably, the problem looms even larger.

Take for example the present controversy surrounding a school in Brackenfell. The events over the last week involving EFF protests, responses by parents and the DA coming out in support of the parents, requires an analysis that takes into account the broader problem of constitutional delinquency in our public life.

To state the obvious: peaceful protests are part of a working democracy; violent protests are a threat to democracy.

There are competing versions about why the protests turned violent outside the school. The determination of who was to blame will doubtless end up in court and for once it would be good if those who engaged in violent conduct were confronted by the law. Sadly, the interests of the pupils in being able to write their exams in an optimally peaceful context has been relegated to the back burner.

The focus of this column is to pose a related, but slightly different question: how is it that in 2020, a party for 42 pupils can take place where not one invitee was black; and this in a school in which there are 254 matric pupils drawn from a diverse community.

Those who elide over the importance of addressing our racist history revert to the argument that it was a private party and hence the freedom of the individual is paramount; that is presumably the freedom to be racist in one’s own home.

But this is hardly a plausible answer.

In the first place, the all-white party was attended by at least two teachers from the school. In turn, this raises an important issue: what kind of school fails to inculcate a culture which transcends race boundaries? In other words, 26 years into democracy, it appears as if schools like Brackenfell have failed to help develop a new South African identity in which the humanity of the pupils of the school which should unite them begins to transcend the race that divides them.

If the party is any guide: not even a start has been made.

One can hear the bittereinders argue that you cannot force people to engage socially. But these are children who, unlike their parents, have enjoyed the privilege of being born into a democracy in which enforced separation is no more. While these children come from different backgrounds, that there still appears to be a laager mentality is truly depressing – after all, do they not play together in sports teams or mix in cultural events promoted by the school? Is there a complete absence of social engagement across the racial divide? Hence, after 12 years of schooling, not one black child is deemed worthy of an invite and at least two teachers at the school seem to consider that nothing is untoward.

The vindication of the Constitution is the country’s best hope for a long-term democratic future. The alternative is for the country to subside into a divide between racially fuelled populism that destroys all constitutional guardrails, save when they protect their own, and a monastic libertarianism that seeks to preserve privileges of the past. The society that is envisaged by the Constitution is one which we create a fresh South African identity which, while respecting the dignity of difference, embraces the idea of a South African community constructed on the basis of substantive equality, dignity and freedom for all 60 million who live in this country.

The journey from the racist authoritarianism of the past to an egalitarian democracy of the future was never going to be easy. But, at a minimum, it requires a commitment to develop a new and nuanced South African identity. That those who were adults before apartheid collapsed would find the journey more difficult is, at least, understandable, not that this cohort should be immunised from critique. But the national hope lies mainly with the “born-free” generation. But when schools like Brackenfell and the parents whose children attend this kind of school, behave as if we were still living in 1980, the entire constitutional dream is fatally converted into material for a populist nightmare.

Brackenfell has become the canary in the mine. Expect more toxicity in our public lives, unless we embrace the future and let go of the past. DM

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Comments - Please in order to comment.

  • Hendrik Mentz says:

    I believe it’s important to hold in mind that what we’re experiencing – and this is just the beginning – is the dawning realization in all of us that the planet is running out of future, starting with jobs. Race therefore becomes a convenient and powerful weapon to exploit by those wishing to distract us for their own ends. We must focus on the problem. And it’s not race.

  • Miles Japhet says:

    Very disappointing that we continue to focus on social engineering. We can spend the rest of our loves being obsessed with how people choose to identify and with whom and this will not change a thing. Rather we should focus on what binds us. The EFF seek any opportunity to blow things out of proportion and the press and commentators walk straight into it – not smart.

  • Andrew Blaine says:

    As I read your commentary it seems you are advocating forced integration to counter chosen segregation? In my opinion both actions are equally abhorrent! I suggest that advocating freedom of choice would be both more effective and in line with the philosophy of the Constitution. Finally I would venture that the Black Lawyers society and all other such discriminatory organizations should be equally criticized as they advocate the same principle of exclusion as did those attending the Brackenfell party?

    • M D Fraser says:

      Quite right Andrew. 42 out of 254 pupils is about 16%. They could simply have been friends who were invited. If 42 of the Black kids had a party at their local shebeen and a couple of teachers joined in, not a thing would have been said.
      Forced integration is no better than segregation. Look what a disaster ‘busing’ proved to be in the USA.

  • Ian McGill says:

    The reason there is so much unemployment is simple ,the economy is not big enough. Please tell me what economy was there 200 years ago? This country needs development of its huge potential and the “freedom fighters” haven’t a clue. Except for perpetuation of race classification in the guise of “upliftment” they are bereft of winning ideas and are stuck in a rigid ideology of the 1930’s.

  • Gina Knowler says:

    To me, there are fringe elements on both ends of the spectrum exploiting admittedly unpalatable yet infrequent incidents (we will always have some Brackenfells – we do not live in Utopia) for their own populist, divisive, nefarious agendas, stirring fear and hate. I have had kids in school since the early 2000’s and not once has there been an issue like this. I don’t believe this incident and others can be used to generalize people’s values and attitudes in our society.

  • Wilfried Vosse says:

    What questions would have been raised if the same number of people of color had their own party? Is the EFF held to the same standards of non violence? (Remember the destruction at Clicks stores?)

  • Hendrik Jansen van Rensburg says:

    I fear that I detect some fault lines in the argument posed by “foremost legal mind”, Prof Balthazar.

    The writer poses the problem that his column highlights in the form of the following question: “how is it that in 2020, a party for 42 pupils can take place where not one invitee was black?”

    So here are my questions to the learned professor:
    1. How do you know that the party was by invitation?
    2. If the party was, indeed, by invitation, then how do you know that pupils of races other than white were not invited, and that they simply declined to attend, for whatever reasons of their own?

    To my layman’s mind, until we have the answers to those questions, his argument, his veiled accusation, and his despair are all moot, are they not?

    Would it not be a pity if the innocent actions of innocent citizens are tarred as racist, based purely on the possibly voluntary lack of participation of members of another race?

    I am sure that my failure to see this matter in the same light as the professor can only be due to my ignorance as a layman, whereas he is, after all, a learned professional.

  • Gerrie Pretorius Pretorius says:

    Reply button gets very confused.
    @Devlyn – You are so right. Forcing anyone into anything is a disaster, every time.

  • Desmond McLeod says:

    26 years into democracy and I absolutely avoid any social gathering where there is a possibility of a mix of races and cultures. The event is always exhausting and not worth the “PT”.
    Is this racist? I suppose it is!
    I avoid these simply because I wish to be able to relax, enjoy myself and talk without being petrified that I may inadvertently say something which will upset someone from a different background and culture. Just read Prince Harry’s comments and you see how racist interpretation is being applied to almost everything a Caucasian says or does. Social intercourse, when different races and cultures are included has become a nuclear minefield.
    A simple example – in my social circle, young energetic and mischievous children are often affectionately referred to as “little monkeys”. Say this about a small child in a mixed race gathering and see the bomb explode. Just not worth it! If this is racist then so be it!

  • What bizzare accusations and assumptions from the professor. In his universe underfunded government schools are now held demonstrably responsible for inculcating societal and constitutional values in their broader community (not just the children at school but the family and social structures of the children at the school) and voluntary social gatherings at a private venues can unequivocally be determined as racist simply by checking the colour of the participants!

  • Jacques Joubert says:

    Our biggest challenge is rent seeking corruption. Corruption and not you are the enemy so-called white farmers in Senekal shouted at EFF protestors. If a race war is coming it will be brought about by the EFF and not the parents of school children in Brackenfell

  • Hendrik Jansen van Rensburg says:

    Since this opinion piece was published, and since my comment in which I asked how the “Professor” had known that the party had been by invitation only, and if so, that no pupils other than whites had been invited, it has been confirmed without any doubt that invitations had been extended to all pupils of all races in the school.

    That can only mean that in writing this opinion piece as he had done, the “Professor” had jumped to conclusions regarding the facts of the matter without being in possession of the necessary supporting evidence.

    A supposedly learned legal professional chose to make assumptions in a sensitive matter involving race without any evidence. In South Africa.

    If “Professor Balthazar” is, indeed, one of South Africa’s legal minds, then I would suggest that that constitutes a far, far bigger problem than a matric dance that was attended only by white pupils.

    I wonder if we can expect a retraction? I am, of course, assuming that an apology would be too much to expect.

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