Apartheid South Africa had laws discriminating against people on the grounds of their race and their skin colour. It was legalised racism; enforcing discrimination by law. This was abhorrent to civilised people everywhere in the world, including South Africa.
Then came FW de Klerk, freedom for Nelson Mandela and the unbanning of the ANC, the SA Communist Party and similar organisations. By the time we held that election in 1994, all the racist laws were gone and apartheid was history.
We had a spurt of growth as the anti-apartheid sanctions were lifted and South Africa was welcomed back in the global economy, followed by slow decay as the chickens of the Rule of Ineptitude came home to roost. Power stations were moth-balled while electricity supply was expanded, with the inevitable failure of Eskom down the line – from a supplier of cheap, reliable power to an unreliable supplier of ever more expensive power. The collapse of the railways, the crumbling of the roads, the neglect of the water infrastructure – heading for imminent crisis – the failure of local government in a toxic cloud of theft, corruption and nepotism.
The Rule of Ineptitude giggled ever downward under successive ANC regimes; from the regal Nelson Mandela to the delusional Thabo Mbeki to the grossly embarrassing Jacob Zuma.
But hey, we were no longer the polecats of the world; we could hold our heads high as members of the rainbow nation who rejected racism and discrimination and, instead, embraced freedom and equal opportunities – a “better life for all,” as the ANC promises on its election posters. Today we are free from racism, free from discrimination and free from oppressive laws. Right?
On the contrary.
Some of us believed we were indeed free; that our Constitution protected us from the ANC regime’s inherent desire to oppress the country’s minorities; that our Constitution protected us even from discriminatory laws. We did watch with growing concern as the regime’s intentions became more undeniable by the week, but we trusted in our Constitution.
Well, here is the treacherous truth. As from 2 September 2014 the South African Constitution no longer protects its people – specifically those classified as members of minority populations – from discrimination by the country’s racist government. From 2 September South Africa again has laws discriminating against people on the grounds of their race and their skin colour. It is legalised racism and should again be abhorrent to civilised people everywhere in the world, including South Africa.
The ugly truth has been lurking, hardly invisible, among us for a long time coming. It was finally revealed in all its naked, racist ugliness when the Constitutional Court nullified a decision by five Appeal Court judges to protect a citizen from discrimination in the workplace. The Constitutional Court decided that the Appeal Court was wrong and that discrimination on the grounds of race and skin colour is right.
The Appeal Court in Bloemfontein used to be the highest court in the land, symbolizing the division of powers with Parliament in Cape Town, Government in Pretoria and the Judiciary based in Bloemfontein. Then the ANC created the Constitutional Court above the Appeal Court. No no, of course the creation of an Über-Court had nothing to do with situations like this, where the regime might not like a decision by the Appeal Court.
And they quite unsymbolically based it in Johannesburg, close to Luthuli House, where the ANC has its headquarters.
The case in question is that of Renate Barnard, a competent officer who wanted to make a career for herself in the SA Police Service. Nothing wrong with that; given the absence of competence among many of our police officials, any sensible South African should welcome people with commitment and ability in our police service. Except, Renate is white.
This is how it happened:
With 16 years of experience in the police, Renate applied for a position as superintendent in 2005, in reaction to an advertisement by the National Commissioner. She was short-listed and interviewed. In the minds of the interviewing panel there were no doubts: Renate Barnard had the right qualifications and experience and they recommended her appointment. In a normal, non-racist society, that would have been the end of the matter.
Not in ANC South Africa. The police said no way; we cannot have a white person in this job! Or, in ANC-speak, appointing her would not enhance racial representivity at that salary level. In normal words, we cannot appoint the best person for the job because that person has a skin colour we don’t like.
So they appointed nobody and advertised the position again. And again Renate Barnard applied, was short-listed and interviewed, and again the interviewing panel recommended her appointment. Awuuu! said the police. Don’t come here with your white tendencies...
So, again, the best person for the job was too white to be appointed. And, just to make sure that their racism wasn’t exposed again, they abolished the position. No more applications from Renate Barnard; there is no job, finish en klaar.
But it was far from over. With the assistance of the trade union Solidarity, Renate took her case to the Labour Court, which found in her favour – giving the optimists among us confidence that justice would prevail after all. The court ruled that by refusing to appoint Ms Barnard, the Commissioner did not implement the police service’s employment equity plan in a fair and appropriate manner.
Okay, so the Labour Court has decided, is that now the end of the matter? Not as long as your taxes are available for racists hell-bent on getting their way. And off the police went to the Labour Appeal Court, where they had some luck at last. Here is where it is getting sticky and where faith in our courts is stretched sadly thin.
Well yes, said the Labour Appeal Court, there is such a thing as section 9(3) of the Constitution and Ms Barnard, like any South African, does have a Constitutional right to equality, but ... some rights are more equal than others. Some measures are more equal than rights. Particularly, the implementation of “restitutionary measures” is “not subject to” an individual's right to equality.
So, of course you have a right to equality, unless we say otherwise. The Commissioner’s refusal to appoint Ms Barnard was not unlawful, the Labour Appeal Court found, because there was no obligation on him to fill the post he had advertised.
This disturbing situation could not be left to stand as a precedent, so Solidarity and Renate Barnard took their case to the Supreme Court of Appeal. Five judges of the Appeal Court found in their favour. They reversed the decision of the Labour Appeal Court and found that the police did discriminate against Renate Barnard on the grounds of her race.
They also found that the police had not succeeded in countering the presumption of unfairness. Ms Barnard was the victim of unfair discrimination in terms of section 9(3) of the Constitution and section 6(1) of the Employment Equity Act.
Well, the police commissioner does not mind spending your money and what is the Constitutional Court for, if not for situations like this?
On September 2 the Constitutional Court delivered its judgment in favour of the police and against Renate Barnard. It set the decision by the Supreme Court of Appeal aside and revived the order of the Labour Appeal Court.
And that is where it ends. South Africa is, again, a country with legalised racism, with laws discriminating against people on the grounds of their race and their skin colour.
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