The day of catastrophe for a non-racial South Africa - Dave Steward
Key topics:
2004 ruling challenged South Africa’s constitutional non-racialism principle
Section 9(2) remedial measures debated for fairness and racial impact
Judgment influenced future cases on racial discrimination and equality
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By Dave Steward
If there ever was a “Naqba Day” (a day to commemorate a national catastrophe) for the dream of a non-racial New South Africa, it was 29 July 2004. It was the day on which the Constitutional Court, in effect, drew a line through the foundational value of non-racialism in its judgement in Minister of Finance vs Van Heerden.
The non-ANC parties did their utmost during the constitutional negotiations to ensure that the new South Africa would be founded on the principle of non-racialism. Non-racialism was a foundational value in section 1 of the Constitution – which can be amended only with a 75% majority in the National Assembly.
Although section 9 of the Constitution – the equality clause - makes provision for remedial action, it includes a peremptory prohibition against racial and other forms of discrimination. Subsection 9(2) provide that “to promote the achievement of equality ... legislative and other measures” may be taken “to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination.”
However, subsections 9(3) and 9(4) state that neither the state, nor any person may discriminate unfairly directly or indirectly against any person inter alia on the grounds of race, ethnic origin, or colour, and subsection 9(5) declares that “discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.”
Minister of Finance vs Van Heerden dealt with the claim of Dr F J van Heerden, a member of the pre-1994 parliament, that the new parliamentary pension scheme discriminated unfairly against him because employer contributions under the old scheme were less generous than those under the new scheme. His claim was upheld by the Cape High Court but was overturned on appeal by the Constitutional Court. However, the real significance of the case lay in the manner in which the judgment - written by Deputy Chief Justice Dikgang Moseneke - dealt with the equality principle in Section 9 of the Constitution.
In rejecting the High Court’s judgment, Moseneke correctly stated that
“Legislative and other measures that properly fall within the requirements of section 9(2) are not presumptively unfair. Remedial measures are not a derogation from, but a substantive and composite part of, the equality protection envisaged by the provisions of section 9 and by the Constitution as a whole.”
Then, in a judicial hop, skip and jump, Moseneke leapt from rejecting the presumptive unfairness of section 9(2); to dismissing the need to show that measures in terms of section 9(2) do not discriminate unfairly; then to proclaiming the inherent fairness of remedial measures, provided only that they complied with the internal requirements of section 9(2):
“I cannot accept that our Constitution at once authorises measures aimed at redress of past inequality and disadvantage but also labels them as presumptively unfair (which it didn’t). Such an approach, at the outset, tags section 9(2) as a suspect category that may be permissible only if shown not to discriminate unfairly. Accordingly, “If a measure properly falls within the ambit of section 9(2) it does not constitute unfair discrimination” and need not therefore be subjected to scrutiny in terms of sections 9(3) and 9(5).
The internal tests that he identified were whether the measure “... targets persons or categories of persons who have been disadvantaged by unfair discrimination; ... is designed to protect or advance such persons or categories of persons; and promotes the achievement of equality.”
Judge Moseneke accepted Ngcobo J’s observation in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others that “the measures that bring about transformation will inevitably affect some members of society adversely, particularly those coming from previously advantaged communities.”
He observed that “a non-racial, non-sexist society in which each person will be recognised and be treated as a human being of equal worth and dignity” was “a long-term goal”. Because the Constitution celebrates and protects diversity and “our equality as citizens”, a measure under subsection 9(2) “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, non-sexist society) would be threatened.”
What Judge Moseneke was, in effect, saying was that:
in the implementation of remedial measures under section 9(2) some considerable harm could be done to people, in effect, on the basis of their race; and
the foundational values in section 1 of “a non-racial, non-sexist society in which each person will be recognised and be treated as a human being of equal worth and dignity” was a long-term goal – and, by implication, not something that could be claimed by all South Africans immediately.
And yet the whole constitutional accord depended absolutely on the principle of non-racialism. Without non-racialism there could also be no question of an equal claim to the core values of human dignity, equality and the enjoyment of many basic human rights and freedoms.
It seems incontrovertible that section 9(2) had to be read in conjunction with sections 9(3) and 9(5). Section 9(5) unambiguously required a test of fairness in any discrimination by the state and thus clearly contradicted Moseneke’s presumption that measures “properly falling within the ambit of section 9(2)” are automatically fair.
In his separate judgment, Sachs J also took issue with Moseneke’s approach. Although he concurred in the outcome of the judgment and unambiguously affirmed the need for robust remedial action in terms of section 9(2), he stated that section 9(2) had to be read seamlessly together with sections 9(3) and (5). He observed that
“...it is important to ensure that the process of achieving equity is conducted in such a way that the baby of non-racialism is not thrown out with the bathwater of remedial action.”
Section 9(2) does not call, for or justify, measures that harm people unfairly on the basis of their race. There are many instances in which fair discrimination can effectively promote equality - such as the elimination of barriers to advancement and the allocation of proportionally greater state resources to the education and social and health services for the historically disadvantaged.
It is by now clear that racial discrimination under section 9(2) has failed to meet even the internal requirements proposed by Moseneke: it has primarily targeted, and been designed to protect and advance, not “persons disadvantaged by unfair discrimination” but the already advantaged ANC middle class and elite – and it has manifestly done nothing to promote equality.
Ironically, the court reached the correct decision that the discrimination of which Van Heerden had complained was probably fair. However, the judgement’s conclusions relating to the implementation of section 9(2) struck a fatal blow to the foundational value of non-racialism and have provided the fons et origo for subsequent judgements sanctioning racial discrimination.