South Africa is still a young democracy yet with a complex history – a history dominated by race and all the associated pain. Yes, South Africa is indeed still grappling with race – but South Africans themselves must come up with an answer.
Solidarity is here today to seek recommendations from CERD by which democracy in South Africa can be strengthened in line with CERD guidelines. The South African Constitution holds international law and conventions in high regard, and input from CERD along our democratic route would be treated earnestly, especially given the major role South Africa has played in the establishment of CERD.
The Solidarity Report has evolved over time in South Africa. It was preceded by a protracted internal process comprising 35 lawsuits against the South African government over racial discrimination, two cases before the Constitutional Court, two amendment acts in Parliament, and two parliamentary debates, one of which was on this report. South Africans across a wide spectrum have been asked for input into the report. Two public conferences, one in the north and one in the south of the country, were held at which speakers from various race and minority groups gave their input. Some 506 000 South Africans signed a petition in support of the report.
What has since happened is that the Constitutional Court has ruled in favor of Solidarity, also acting on behalf of colored South Africans (classified as “black” as contemplated in the Employment Equity Act). More information in this regard will follow in this presentation.
Of late, we have seen how our government simply flouts court orders and embarks on protracted court processes to defend its race ideology.
The Minister of Sport and Recreation also announced that South African sports bodies may not host international tournaments because they do not comply with certain quota requirements.
Solidarity and the civil rights organization AfriForum have thus been compelled to submit a supplementary report. The combined paid-up membership of the two organizations totals 330 000.
What this report is presenting to you is an affirmative action system that has gone too far – a system that has become so ensnared in race that redress got lost. It is a system in which races are permanently institutionalized in various silos.
In our shadow report we are indicating that the system goes beyond what CERD contemplates. It is not the purpose of this report to repeat the content of the shadow and supplementary reports. I believe they are comprehensive and legally well argued.
In the minority ruling in the Constitutional Court case, Solidarity v. the Department of Correctional Services, Judge Nugent held:
In contrast to the thoughtful, empathetic and textured plan one might expect if weight were given to what was expressed by this court, what we have before us is only cold and impersonal arithmetic. A person familiar with the arithmetic functions of an Excel spreadsheet might have produced it in a morning.
It is precisely about this mathematical approach to race and government’s constant defense thereof that we are approaching CERD for advice and a recommendation.
What we are presenting is not just the risk that government’s representivity policy poses to individuals but to minorities. Government’s affirmative action program does not deal with individual prejudice but with group prejudice.
What we are putting to you is the danger of South Africa becoming a majoritarian democracy under the guise of affirmative action – a land becoming something other than that envisaged by Nelson Mandela.
In our report we show how exposed the various minorities – white, colored and Asian South Africans – have become.
On the surface, this presentation seems to be dealing simply with a labor issue; however, the underlying theme is about the power of the majority. Thus, we are not asking that affirmative action be abolished but that power be balanced. In fact, we believe that bona fide upliftment is a prerequisite for stability.
There is a very thin line between not being allowed to work in a certain place as opposed to not being able to live there. Already, people in the colored community of the Western Cape have been told to relocate if they wanted a job. The next step is easy to foresee.
That is why the imminent balancing of majority power in South Africa is crucial; our minorities may be standing here before long with lamentations of brutal power abuse in our country. Indeed, the acid test for democracy is whether or not it can protect its minorities.
Minorities in South Africa, in general, are exposed, but white South Africans are facing an additional quandary and for historical reasons they are a discredited, conspicuous and generally hard-working minority. That makes them even more exposed as they do not have the moral capital to defend their cause. We are therefore standing here before you to raise red flags about the raise flags about the risks for minorities.
It is now my great pleasure to introduce two members of our delegation who have played an astonishing role in the effort to bring about balance in the South African government’s racial ideology. They are Freddie Engelbrecht, a colored South African, and Renate Barnard, a white South African woman.
Freddie Engelbrecht is a colored South African who works as a civil servant for the South African Department of Correctional Services (DCS). He can be regarded as the symbolic father figure of the nine colored employees who had taken government to court over its implementation of affirmative action. Colored South Africans are part of the designated group; in other words, they are supposed to be beneficiaries of affirmative action.
A large section of colored South Africans can be regarded as the early or original residents of South Africa, traditionally living in the southern parts of the country in the Western and Northern Cape. They constitute around 51% of all residents in the Western Cape and, country-wise, about 9%.
However, the Department of Correctional Services follows a rigorous mathematical approach to affirmative action: Each job level in the Western Cape should strictly reflect the South African racial demographics. Ironically, it is expected of colored South Africans to be distributed across South Africa according to colonial boundaries. Former Director-General of Labor, Jimmy Manyi, passed the following (verbatim) comments about the overconcentration of colored South Africans in the Western Cape:
So this over-concentration of coloreds in the Western Cape is not working for them. They should spread in the rest of the country … so they must stop this over-concentration situation because they are in over-supply where they are so you must look into the country and see where you can meet the supply.
In an interlocutory application concerning the position of Mr Christo February, a colleague of Engelbrecht and also involved in the Correctional Services case, the State argued that he should leave the Western Cape to pursue his career in some other part of the country as so-called coloreds were overrepresented in that province.
Therefore, according to the government, Freddie Engelbrecht and other colored South Africans do not have access to employment where they reside.
In the minority ruling in the DCS Constitutional Court case, Judge Nugent posited:
The purpose of the Employment Equity Act for present purposes is representivity in the workplace. This is achieved by equitable access to employment opportunities – and employment opportunities are accessible to people only where they live. The objective [of this Act] is not to induce racial migrations to accommodate the statistics.
The nine colored employees applied for positions, were found to be the best candidates and, with one exception (I will deal with the situation of the tenth applicant, a white employee, at a later stage) were recommended for the positions in question. They were not appointed because, based on the national demographics, they were overrepresented. They will always be overrepresented because they constitute 51% of the Western Province’s population but only 9% of the national population.
As Judge Nugent put it, the plan of the DCS is a series of arithmetic tables. Differences between job levels and the country’s demographics are recorded to the last iota. Notes are then compiled accordingly about how many people need to be cut and how many need to be added.
The following is a verbatim example of such notes:
Levels 9 –12:
At levels 9 & 10 only 51 African Males; 198 African females; and 2 Indian females can be appointed. At level 11 & 12 only 109 African females, 5 White females and 9 Coloured females can be appointed.
And so, a pocket calculator is used to determine people’s future from one job level to the next.
In this regard, Judge Nugent wrote:
It gives a flavor of how antithetical the Plan is to constitutional transformation that is respectful of the rights of everyone.
Solidarity approached the Labor Court on behalf of the employees. The court ruled that regional demographics had to be taken into consideration with immediate effect. However, the court did not find that the Employment Equity Plan was unlawful and invalid. Solidarity lodged an appeal against it and the DCS appealed against the fact that the regional demographics had to be taken into account.
The Supreme Court of Appeal upheld the Labor Court’s ruling, yet again not granting remedy to the applicants. Solidarity then referred the matter to the Constitutional Court. Again the DCS opposed it.
Despite pending orders against the department, the DCS continued to implement its plan to only apply the national demographics. This forced Solidarity to bring an application for contempt of court against the department. Judgment was reserved. Meanwhile, the Constitutional Court ruled that the DCS’s actions were indeed unlawful, that the regional demographics had to be taken into account, and that the employees had to be promoted retrospectively. However, following this ruling, there is still uncertainty when it comes to the fate of colored South Africans, and this would be dealt with at a later stage.
Notwithstanding the ruling of the Constitutional Court, the DCS continues to uphold its original plan; on 2 August 2016 Solidarity issued a notice to the department that yet another application for an interdict and for contempt of court was to be lodged.
The case study of Freddie Engelbrecht and his colleagues shows just how intensely government subscribes to its mathematical approach to affirmative action. It is almost impossible for a civilian organization to become embroiled in protracted court cases against a government financed by tax money.
I want to introduce Renate Barnard, the second member of our delegation. Renate waged a nine-year battle for promotion in the South African Police Service (SAPS). She applied for a promotional position twice, and twice she was recommended as the best candidate by a multi-racial panel but she was denied promotion every time. When the same position was advertised for the third time, she again applied but his time the advertisement was withdrawn. The position was never filled. She won in the Labor Court and the court found that the dignity of white employees should also be taken into account. She lost in the Labor Appeal Court and she won in the Supreme Court of Appeal.
The government, however, felt so strongly about their mathematical approach to race that they appealed to the Constitutional Court. She lost in the Constitutional Court on the basis of what in legal terms is now known as the Barnard principle. The Barnard principle boils down to the following: If one group is overrepresented, it would not constitute unfair discrimination if an individual from that group is not promoted. A position may even be left vacant.
To illustrate the absurdity of the state’s implementation of the Barnard principle, I cite the testimony of the South African Police Service in the Naidoo case:
For Indian females the calculation is 19 x 2.5% = 0.5 positions to be filled by Indians, then 0.5 X 30% = 0.1 Indian females and that is rounded off to zero. Of the five available positions 0.125 could go to Indians x 30% gender allocation means 0.037 could be allocated to Indian females and that is rounded to zero.
Solidarity proceeded with a court case and requested that the employment equity plan of the SAPS be declared unlawful in its entirety since it was based on rigid racial quotas. The court ruled in Solidarity’s favor.
Despite this success, the SAPS proceeded with the implementation of a new plan that continued to use the national racial demographics as a quota. Solidarity had to approach the court again to obtain an interdict against the SAPS in terms of which they may not continue with promotions in accordance with the new plan.
Meanwhile, Solidarity came to an agreement with the SAPS a week ago in terms of which the SAPS acknowledges that its plan must be revised and in terms of which discussions will be held regarding settlements in other individual cases.
Government once again went out of its way to defend its racial ideology in the courts and the civic society had to approach court after court to enforce rationality. The acting National Police Commissioner, Khomotso Phahlane, said in response to the settlement that it was better to sit around a table and find a solution than to go to court every time. We agree, but unfortunately that only came about after years of court cases and we are still not sure that is a thing of the past.
I come back to the Barnard principle. In the majority ruling in the Constitutional Court case Solidarity v. the Department of Correctional Services, the question was asked whether the so-called Barnard principle was also applicable to Indian, colored and black South Africans. The conclusion was yes, it was indeed the case. If one group is overrepresented, it could be that a person does not receive promotion even if that person is from a previously disadvantaged group.
“A designated employer is entitled, as a matter of law, to deny an African or Colored person or Indian person appointment to a certain occupational level on the basis that African people, Colored people or Indian people, as the case may be, are overrepresented or adequately represented in that level.”
We believe that this is wrong because it focuses on racial representivity and not on redress. It institutionalizes racial classification and race silos in South Africa. If this point of view is maintained, it would hold serious consequences for minorities in South Africa.
Despite the fact that the government’s plan was found to be unlawful, the Constitutional Court nonetheless found in the case Solidarity v. the Department of Correctional Services that the discrimination against one white applicant, Peter Davids, was lawful in terms of the Barnard principle. However, in the minority ruling, Judge Nugent had a different opinion. This creates tremendous uncertainty among the white minority.
After the Constitutional Court ruling, major confusion exists regarding affirmative action in South Africa and CERD could give the country guidance on the boundaries of such an affirmative action plan.
Race and sports
The government’s ideology of racial representivity affects all spheres of society. The most recent field affected is sports, with the Minister of Sport and Recreation, Fikile Mbalula, announcing radical steps because South African teams do not reflect the South African society as yet.
I conclude with some remarks concerning sports that are dealt with more comprehensively in our supplementary report.
AfriForum is a civil rights organization who, together with Solidarity, initiated a court case against the Minister of Sport and Recreation against racial quotas in sports.
On 25 April 2016, the Minister of Sport and Recreation announced that the right of four major sports federations to host and/or bid for major and mega international tournaments in the Republic of South Africa had been revoked due to their failure to meet specific racial targets within their respective sports teams.
This action is in total contrast to the words of the African National Congress spoken on 25 May 1971 and prepared for the United Nations Unit on Apartheid in 1971:
The moral position is absolutely clear. Human beings should not be willing partners in the perpetuating of racial discrimination. Sportsmen have a special duty in this regard in that they should be first to insist that merit alone be the criterion for selecting teams for representative sport.
One such player taking up his special duty to fight for merit at national level and who supports Solidarity and AfriForum’s campaign against quotas in sports is the former member of South Africa’s national soccer team, Mark Fish.
Fish played for the South African team for 14 years and was a member of the team that won the African Cup of Nations.
He has been actively involved in charity work, much of it aimed at the development of African soccer and the eradication of African poverty. He was one of a handful of Ambassadors in South Africa’s successful bid to host the 2010 FIFA World Cup tournament.
In a video interview where he added his support for the AfriForum/Solidarity campaign, he said the Minister did not understand sports and should rather refrain from making such pronouncements. He also said the government was not doing enough for the development of sports. According to him, quotas have no place in sports and quotas are destroying sports. In this way, Nelson Mandela’s dream of uniting people through sports is also being destroyed.
However, it is not only Mark Fish who feels like this. In a survey conducted by the South African Institute for Race Relations, 78% of all South Africans indicated that merit should apply in the selection of sports teams. 74% of all black South Africans also support this view.
We submit that taking away rights and privileges to force racial outcomes was never the intention of either the South African constitution or this convention. We also submit that government intervention in sports selection and discrimination on the grounds of race are in conflict with virtually all international sports codes.
The answer lies in sports development from school level. Children should be enabled to take part freely in any sport of their choice.
Conclusions and recommendations
As may be inferred from our report, South Africa is in a robust process of giving content to its democracy. In the minority judgment in the Barnard case the following was stated:
“We must note with care how these remedial measures often utilize the same racial classifications that were wielded so invidiously in the past. But fighting fire with fire gives rise to an inherent tension. … to exercise this vigilance, remedial measures must not unduly invade the human dignity of those affected by them.”
Our argument is that the state’s racial ideology of representivity does not carefully deal with racial classification. We believe that it is not building a bridge between the underlying racial tension lines but rather is feeding them. We believe that it is not leading to non-racialism but to neo-racialism. We believe the state’s racial ideology is constructing a future based on race.
This convention played a huge role in the creation of South Africa’s new democracy and also has to play a huge role in ensuring that the content of this democracy remains aligned with the content of the convention as ratified by the South African government. We are not asking the committee to interfere in the domestic affairs of a member country, but to help giving clear direction. This committee can play an important role.
In our main report as well as in our supplementary report we indicate in more detail what we view as gaps in the government’s report and how these gaps should be filled. We also explain what questions we reckon should be put to the South African government. We also indicate what recommendations we think the committee should make.
Our suggested recommendations may be summarized as follows:
That the government should prove to the committee why its mathematical approach to racial representivity does not amount to the creation of institutionalized silos for different races.
That the government should report on the various court cases concerning racial discrimination against the state.
That the government should report on the non-compliance with court orders concerning judgments on racial discrimination.
That the government should indicate whether its policy on quotas in sports is in line with the principles of this convention and international practice on racial quotas and interference in sports.