The Rule of Law vs the Constitution

Sydney Kaye says the truth is racial discrimination is deeply embedded in that document

South Africa prides itself on being a Republic founded on “the supremacy of its constitution and the Rule of Law “. So says section 1(c) in Chapter 1 of the Constitution.

That of course implies an adherence to the concept of a natural law which has been developed to be universally accepted and which supersedes national law and, one can argue also national constitutions. Some may say that since our constitution is the supreme law of the land then whatever it says is per se lawful, but that cannot always follow if the constitution has specifically positioned itself under the Rule of Law and in the event any of its provisions are not compliant with it.

If we accept that in terms of the concept of constitutionalism our national constitution constrains the legislative and executive arms of state, then we must accept that the Rule of Law, as somewhat codified by the United Nations General Assembly resolution 217A of 10 December 1948 (the Universal Declaration of Human Rights), similarly constrains our national constitution and the Constitutional Court.

When considering the lawfulness of our constitution and its interpretation, a reasonable prime facie observation would be that it has facilitated the contravention of a foremost requirement of the Rule of Law; that no one may be discriminated against.

Although discrimination on the grounds of race is specifically outlawed under section 9 (1), 9 (3) and 9 (4), the oxymoronic words of section 9.5 (discrimination is unfair unless it is established that the discrimination is fair) cannot be compliant with the rule of law since the fundamental right not to be discriminated against is absolute and unconditional, and cannot be watered down to be meaningless, by semantics.

“Fair discrimination” has two distinct applications in our law. The one referred to in the Employment Equity Act which permits discrimination in employment matters when the job description requires specific attributes and where in that case treating employees or job applicants differently is permissible. Describing this phenomenon as discrimination (fair or otherwise) is a misnomer since it is only discrimination on the face if it, being in reality a valid bona fide objective, which the EEA calls a “proportionate means of achieving a legitimate aim” and is in fact a matching of qualifications to requirements.

This leaves the “fair” discrimination as contemplated in the constitution for which there is one reason only; to give license to racial discrimination when linked to the transformative nature of the Constitution.

Notwithstanding section 1 (b) of the founding provisions of the Constitution which proclaims non-racialism, racial classification runs through the county’s laws in furtherance of that transformative objective of the Constitution as enunciated in Section 9(2).

The right to earn a living, as an example, which is specifically granted under section 22, is substantially degraded by labour and procurement laws and regulations which the Constitutional Court has seen fit to find constitutional.

So, despite the panoply of the Constitution Court, the learned judges, the green robes, the acres of esoteric arguments and legal acrobatics, non-Africans of all shades to differing degrees (defined in groups) under South African law are materially discriminated against particularly in the work place. They cannot work for any government or para government entity without severe restrictions on their careers; they are met with corporate employment practices looking for BEE qualifications; and they are severely disadvantaged in doing business with any government entity by procurement protocols and/or unless they are prepared to be coerced into giving away equity or taking an unwanted partner.

The UN Declaration of Human Rights has this to say:

Article 2: “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” and

Article 7: “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination”

In effect every provision in our constitution that gives license to and/ or permits legislation, charters, regulations or decisions that has the effect of discrimination, for whatever political reason, may well be unlawful.

Of course, these consequences could have been avoided if positive affirmative action in furtherance of transformation was premised on disadvantaged individuals, not groups and certainly not racial groups as provided for in section 9 (2) of the constitution which reads as follows: “To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.” Those words (categories of persons) could have been omitted, but in agreeing to that provision, the constitutional assembly ignored the moral imperative that “two wrongs don’t make a right”, since through this clause the unfair racial discrimination of the past was to be rectified by unfair racial discrimination in the future, albeit against different races.

In the event that those who had been previously disadvantaged had been identified as individuals by objective means we would not have had these negative side effects, inter alia: how to define “black” and how to decide who is black when there is a classification is disputed; repeated discriminatory opportunities for those who have already benefited; unfair advancement for black applicants who had never been disadvantaged in any way; the demotivation of black achievers who have earned their positions or business success solely by hard work, tenacity and merit; and the establishment of a rentier class together with state capture and the de-capacitating of the public service by cadre deployment, to the detriment of every citizen who is equally entitled to government services, protection against crime and an encouraging macro-economic environment.

The recent Constitutional Court judgement in Minister of Constitutional Development and Another v South African Restructuring and Insolvency Practitioners Association and Others illustrates the embarrassing depths to which one must plunge once on the slippery slope of racial discrimination, where each layer of absurdity must be covered with another to sustain the original flawed concept. 

As a means of restitution in the insolvency industry the Minister had set out bizarre categories of previously disadvantaged persons identified by groups, maintaining the fiction that every person in those racial group was equally disadvantaged, while every person in the white group who according to the policy was equally advantaged. There was a strict instruction to the Master of the High Court on how to allocate work in a prescribed manner, working through these groups. 

The groups were:

‘A’ represents African, Coloured, Indian and Chinese females who became South African citizens before 27 April 1994;

‘B’ represents African, Coloured, Indian and Chinese males who became South African citizens before 27 April 1994;

‘C’ represents White females who became South African citizens before 27 April 1994;

‘D’ represents African, Coloured, Indian and Chinese females and males, and White females, who have become South African citizens on or after 27 April 1994 and White males who are South African citizens.

All white males, regardless of when they had become South African citizen or South African citizens by birth were consigned to the last group on the list.

The Constitutional Court found the policy non-compliant with the constitution, not as a lay person might have imagined because the policy was discriminatory, but because it wasn’t discriminatory enough. The Court was concerned that because the non-white post 1994 citizens were grouped with all white males (both pre and post 1994 citizens) they would not be advantaged more than the whites who shared group D with them. It seems the Constitutional Court could not could not countenance a non-white person who became a citizen in say only 2016 not benefiting more than a white person who had been born a citizen say 60 years ago.

Looking at the topical subject of EWC and with respect to some of the outrageous demands and comments being made around it, some points should be made taking into consideration Article 17 of that Declaration of Human Rights which states:

(1) Everyone has the right to own property alone as well as in association with others.

(2) No one shall be arbitrarily deprived of his property.

Firstly, as an aside; since obedience to the Rule of Law resides in Chapter 1 of the constitution, any resolution to interfere with it would very well require 75% approval in Parliament not 66.6% which neither the ANC or EFF seem to have recognised, since private property rights is a founding principle of the Rule of Law.

Secondly; since Article 17 outlaws arbitrary deprivation of property any interference with section 25 of the Constitution, or if changes were not to be not of generally application or lacking in equity, would certainly constitute a contravention of the Rule of Law.

Thirdly; South Africa is already and continuously in breach of the UN Declaration of Human Rights by allowing the disgraceful situation where Traditional Leaders have usurped the individual’s right to own property alone and where pending legislation is likely to worsen rather than improve that breach.

Either of these breaches will have South Africa drifting into rogue nation territory.

In 1966, the UN General Assembly labelled apartheid as a crime against humanity (resolution 2202 A (XXI) of 16 December 1966) and in 1984 the Security Council endorsed this determination (resolution 556 (1984) of 23 October 1984). It declared that apartheid was unlawful because it violated the Charter of the United Nations by discriminating on the grounds of race and skin colour, that being the most egregious example of a human rights abuse, and yet South Africa today is amongst a very small number of countries, no other professing to be a constitutional democracy, where there are discriminatory laws against racial minorities enforced by racial classification.

Karl Marx would have been very disappointed that the South African state has once again become one where “to each according to his needs” has once again become “to each according to his race”.

Sydney Kaye, Cape Town.