Dave Steward says the ConCourt judgment in the Renate Barnard case undermines the principle of non-racialism contained in Section 9 of the Constitution.
The Constitutional Court judgment last week in the Renate Barnard case raises questions as to whether the foundational value of non-racialism is still applicable to white South Africans.
In so doing it strikes another blow at the national accord on which our new society has been constructed.
Section 9 of the constitution was one of the most carefully negotiated elements of our accord. It sought to strike a balance between the need for measures to promote the equality of those who were disadvantaged by past discrimination, and the need to avoid unfair discrimination on several grounds.
The Barnard judgment upsets this balance. It reinforces the court’s finding in Minister of Finance v Van Heerden that affirmative action in terms of section 9(2) of the constitution is automatically fair provided only that the measures:
* Target a particular class of people who have been susceptible to unfair discrimination.
* Are designed to protect or advance those classes of persons.
* Promote the achievement of equality.
In the Barnard judgment, the court reaffirmed that “once the measure in question passes the test, it is neither unfair nor presumed to be unfair”.
According to the Van Heerden judgment, the only other limitation placed on affirmative action in terms of section 9(2) was that it “… 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 (of a non-racial society) would be threatened”.
This formulation must be carefully analysed because it poses a potentially fatal threat to the constitutional accord reached in December 1993.
What the court was saying was that:
* Measures that impose significant harm on South Africans according to their race are acceptable – provided only that the harm is not so substantial that our long-term constitutional goal would be threatened.
* The term “undue” harm creates the idea it is permissible to inflict “due” harm on people according to their race.
* The reference to “our long-term constitutional goal (of a non-racial society)” consigns the foundational constitutional principle of non-racialism to some undetermined date in the middle or distant future. In so doing, the court also seriously undermined the rights of white South Africans to human dignity and equality, interlinked with the right to non-racialism. It is, in effect, a prescription for, and validation of, harmful discrimination against millions of South African citizens for an indefinite period, on no basis other than their race – with no reference to their individual merits, circumstances or concerns.
* Dave Steward is the executive director of the FW de Klerk Foundation.
** The views expressed here are not necessarily those of Independent Newspapers.
Pretoria News