|'I am male, I am white, and I am physically able.'
If this last sounds like some Alcoholics or Narcotics Anonymous confession, it is apt - I do have a problem, and a rather serious one at that: Yes, I will freely admit to being someone who was "previously advantaged". But for all that, I may very well currently be, for all intents and purposes, a second-class citizen in the country of my birth, which country, ironically, boasts a Constitution frequently hailed by the outside word as one of the most progressive in existence.146 The Constitutional Court's judgment in Barnard has further paved the way for this, not because it was clearly or even inherently wrong (although it may very well be unjust), but because it was so tentative in its apparent unwillingness to deal with matters that affect thousands of South Africans on a daily basis. Following reports in the wake of the judgment it was interesting to consider the degree of unhappiness felt in certain quarters, and how this was expressed with a proverbial sigh of despair with reference to the fact that the claimant in this case had now exhausted all domestic legal remedies in South Africa (her legal team were, at the time, threatening an approach to the United Nations in order to assess whether South African law complies with international best practice regarding the prohibition of all forms of racism). I was reminded of the words of Nicholson JA (as he then was in the Labour Appeal Court), as expressed in an unfair dismissal case (and in respect of the review of administrative action, rather than that of judicial decisions):
In a perfect society with unlimited resources full rights of appeal should be allowed from every administrative decision. Society has an inbred distaste for the spectre of a remediless recipient of administrative injustice.147
Is Ms Barnard the now remediless recipient of judicial injustice? Even though Mokgoro J in Van Heerden declared that section 9(2) of the Bill of Rights "as an instrument for transformation and the creation of a truly equal society, is powerful and unapologetic",148 does someone (apart, maybe, from her legal team) owe Ms Barnard an apology? As already said, I am not convinced that the judges of the CC were (all) clearly wrong, just that they (for the most part) were inappropriately tentative in their approach to a case that – by their own admission149 - carried much broader societal implications beyond what had happened to the claimant and what had been decided by the National Commissioner of Police in respect of the filling of a specific vacant post. Their oath of office requires the judges of this court to do more. Wiechers observes that the CC in Barnard (and other recent judgments) appears to have shifted from its bold and no nonsense approach in those earlier ground-breaking cases that law students still study today, which dealt with the certification of the Constitution, which abolished the death penalty, which ordered the provision of antiretrovirals to those in need, and which changed the law's treatment of gay relationships (amongst other things). He feels that the CC has increasingly come to function like a highest court of appeal, taking minor procedural points and raising technicalities in order to wash its hands of weighty matters that come before it. As Wiechers points out, while the CC is not merely an ordinary court of appeal with the power to review judgments of lower courts, the majority of the judges in Barnard were of the opinion that the claimant should rather have attacked the decision of the Commissioner of Police rather than the promotions policy of the employer. Should a court charged with protecting our Constitution and giving deeper meaning to its provisions not have done more? I would say yes, not necessarily in order to assist an ill-advised claimant, but in order to provide the rest of us with guidance as to what the Constitution actually requires.150
In the light of the still quite pristine reputation of our Constitution, what may sometimes be forgotten is that, even so, it is still and should always remain a work in progress. If this Constitution is not a living document it will lose most if not all of both its continued relevance and its legitimacy. Does Barnard (CC) reflect this? Does this judgment highlight a shameful failure by these judges to recognise their pivotal role as "constitution-makers"?151 Or does it reflect little more than a court showing an abundance of caution and a fear of rocking the boat in respect of a fundamentally important issue that came before it only for the second time in two decades of democracy? In respect of the court's failure to deal, in a real and convincing manner, with the role of representivity in this debate, is this just nothing less than one should expect from an institution that has itself been so aggressively targeted to reflect representivity?152 I have been controversial enough already, so I may as well really step out on a limb and wonder aloud whether the discrepancies in the Constitutional Court judgments regarding such fundamental aspects of our Constitution and its transformational agenda (and between such judgments and the lived reality of the ideology of demographic representivity in action in current-day South Africa) may be due to something that should leave all in the legal fraternity (and beyond it) cold. Malan quotes the then Deputy Minister of Justice and Constitutional Development, who told Parliament in a 2003 speech on transformation of the judiciary that this concept comprises two elements:
[F]irst, the realisation of the objective equitable representation of blacks and women, described as "diversity, personnel or symbolism transformation"; and, second, transformation relating to the intellectual or ideological approach adopted by judges and magistrates, which he referred to as "intellectual content or substantive transformation". [My emphasis]153
Wessels154 refers to a 2000 report by the Public Service Commission which explained the "action dimension" of transformation of the service as comprising the following two elements; namely to:
(a) create a genuinely representative public service which reflects the major characteristics of South African demography, without eroding efficiency and competence'; and '(b) facilitate the transformation of the attitudes and behaviour of public servants towards a democratic ethos underlined by the overriding importance of human rights …155
The author observes that "[t]he reshaping of the public service accordingly seems to comprise two elements, namely the reshaping of the characteristic of the public service in terms of its representativeness, and the reshaping of its orientations or attitudes in terms of its democratic ethos".156 Would that democratic ethos be a majoritarian one, hell-bent on transforming our society in the image of one (majority racial) group, never mind what the Constitution might have to say about this? Is the ideology of demographic representivity (in the transformation of the public service) ultimately aimed at changing the thinking of those in official positions?157 If so, has our judiciary started to show signs of this? Or is the air just too rare on Constitution Hill? All of this might indicate that someone has misread the text of the Constitution and has opted to treat the judiciary as just another part of the public service which, according to section 197, "must loyally execute the lawful policies of the government of the day".158 Leaving aside the implications of that word "lawful" in our current context, this would, of course, be completely anathema to the separation of powers and the independence of the judiciary from the executive and legislative arms of the state. (As section 165 tells us, the "courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.")159 It would also, of course, be morally bankrupt. This being said, however, at least one commentator would appear to endorse something a little different from our courts when it comes to fulfilling their part in the process of transformative constitutionalism – and this appears to endorse the furtherance of the political goals of the day in the decisions of our judges:
[I]t has been pointed out time and time again that both constitutionalism and adjudication are distinctly political – "the issue is not whether, but what type of, political values should enter into adjudication". The South African Constitution, as is common for constitutions in transitional societies, unashamedly dictates the political vision required from its interpretative community by articulating unequivocally the political goals to which those tasked with its interpretation and concrete application must aspire. It enjoins them to "uphold and advance its transformative design" and hence to participate actively in the political project of transformation. This means firstly that South African judges must aim in their judgments to further (or at least not to hinder) the achievement of substantive equality and social justice. This would often require that judges (in interpreting rights in the Bill of Rights, measuring state compliance with the duties these impose and remedying non-compliance with such duties) transcend traditional conceptions of their role under a liberal model of separation of powers – a transition for which the provisions of the Constitution discussed above well equip them.160
While some might read this as apparent constitutional licence for Van Heerden's rationality test (especially, in the context of its application to such a manifestation of the governmental representivity ideology as presented in Barnard), they should reconsider. This same author continues:
[J]udges must demand, in every constitutional matter, that the other branches of government present adequate justification for all their actions that impact on the constitutional rights of the citizenry. Where justifications advanced do not reverberate with the tenets of constitutional transformation, they should not pass constitutional muster. Insisting consistently on justification which reverberates with the spirit, purport and objects of the Constitution requires not only that these are expressly articulated in judgments but also that the judiciary abandons the remnants of a culture of extreme deference to the executive which it has cultivated over years of adjudicating the actions of the sovereign apartheid state.161
Whatever the reason(s) for the apparent lack of commitment in our highest court to facing up to what I view to be such a blatant and abhorrent distortion of the underlying values and, indeed, the provenance, of our Bill of Rights, one can only hope that someone else will be willing to rock the boat, and soon. Give it a vigorous shaking, please. We all need to be shot of the affirmative action provisions of the Employment Equity Act and of the nonsensical, grossly irrational and what I would suggest to be a criminally unfair ideology of demographic representivity (as a rather poxy proxy for equality). If I may be crude for a moment: having spent some time in Durban in recent years I am proud to say that I have some delightful Indian friends. If any of them were to seek my advice about the future prospects for their children to find employment in democratic South Africa, should I advise them to stop using birth control (and to spread the word amongst their (Indian) friends)?162 When one considers the "immutability" of some of those arbitrary, listed grounds of unfair discrimination in section 9(3) of our Bill of Rights - and the fact that the nonsensical pursuit of demographic representivity in all our workplaces is just as arbitrary, if not more so – this really is the only way that I can see to ensure that those of us who are "numerically challenged" in the new South Africa will ever get a fair shake.
If anyone will ever end up reading this piece, I fully expect some vociferous criticism. Some of it, no doubt, will come from those very learned and respected intellectuals who have written, exhaustively, on equality and redress under our Constitution (they know who they are, and I have immense respect for their contributions to the constitutional debate). But we need to scale things down quite a bit, not least because we must find a way to explain these complicated principles to many ordinary South Africans who are faced on a daily basis with the pernicious effects of the implementation of policies (and ideology) that affect them very directly, and which they simply cannot grasp with reference only to impressive intellectual arguments. Who can blame them? I am convinced that (sadly) very few South African living rooms contain the collected works of Immanuel Kant,163 Michele Foucalt and Jean Francois Lyotard,164 John Stuart Mill165 or Amartya Sen.166 Very few ordinary South Africans apply for jobs or for promotion, or ply their trade, in those lofty but often obscure and other-worldly, ivory towers. As an academic who has discussed these burning issues that are festering in our society in classes and seminars with both undergraduate and postgraduate students (note: an environment made up mostly of the privileged), I am convinced that the informed (not rhetoric-loaded and invective-filled) debate must be broadened beyond our classrooms and law journals. If the subject matter of this piece is characterised by any one thing it is that the efforts to pursue true equality in our country currently is not a process that takes place on the pages of law books and statutes; it takes place in our workplaces and amongst ordinary people.
We need to find some common sense, and we must find it fast.167 The clock is ticking. Let's hope we are not yet at five minutes to midnight in respect of the future of what is, if we are perfectly honest, our still quite fragile constitutional project. It deserves so much better than this. As do we all, including - let me just grab my calculator - at least 100% of the beneficiaries of "affirmative action" under the Employment (In)Equity Act.
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