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P DENNEBY
District Six
Cape Town
23 May 1996
This is a
submission to the Constitutional Court from an ordinary citizen, me, Peter
Denneby.
I read in the newspaper yesterday that we have only until the
end of the month to make submissions about the new constitution. I
have been
able to get a copy of the section that concerns me, the clause in the Bill of
Rights which allow affirmative action.
Chapter 2 of the constitution,
clause 9(2) says: ‘Equality includes the full and equal enjoyment of all
rights and freedoms.
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’.
My main
submission is that the phrase ‘or categories of persons’ should be
deleted.
My reason for asking this is that it seems unfair to me -- and I
hope also to you -- that persons who were not disadvantaged by the
unfair
discrimination of apartheid, but belong to a category of persons who were,
should now be given preference in respect of appointments
to jobs or
promotion.
I do not know what ‘categories of persons’ the
drafters of the constitution had in mind here, but I suspect these were
the
categories that apartheid imposed -- black, coloured, Asiatic, other coloured
and so on.
Let’s assume that we will have the constitution for 100
years with this clause unaltered. If we leave in the words
‘categories’
and those categories are construed as racial categories
(as seems reasonable in the context), then we could have the following
scenario:
My own daughter, Talia, who was born in 1993, may in 20 years
be competing for a job, or a promotion with other contenders of various
‘categories’ yet very similar capabilities and potential. Would she
enjoy preference over the ‘white’ candidate
because she belongs to a
‘category of persons disadvantaged by unfair discrimination’? She
would have been regarded
as coloured by the old South African regime, had she
been born before the Population Registration Act was scrapped. I was
categorised
‘white’. Talia’s mother was categorised
‘coloured’. I want all of us to get away from this racial
madness
as soon as possible, yet instead we seem to be entrenching it in our new
constitution.
There are a lot of wonderful-sounding clauses in the
constitution, such as 9(1), (3), (4) and (5), but I suspect that the second
sentence
of clause 9(2) supercedes them. This is because your court will regard
it as fair for someone to take measures to advance a person
who belongs to a
category of persons disadvantaged by unfair discrimination in the past.
I
would like my daughter to be an equal citizen in this country of ours, not a
‘coloured’ who must be advanced through
special measures to promote
the achievement of equality.
Talia’s mother may regard herself a
disadvantaged by ‘unfair discrimination’, but in comparison with
‘blacks’
as opposed to ‘coloured’, she was given an
advantage by apartheid. The present ....(illegible) over the reduction of
teachers: ...(illegible) ratios in Western Cape schools is ...(illegible) one
illustration of this.
I want to take another example. A Zimbabwean, or
else someone from the United States of America, comes to South Africa and is
‘advanced’
here by affirmative action, to promote the achievement of
equality which is seen in terms of the colour composition of his or her
workforce.
Let’s say someone objects to this advancement. The
matter goes to the Constitutional Court. Your hands will be bound by this
clause, ‘or categories of persons’, if the Zimbabwean or American
who immigrated in mid-1996, for example, is ‘black’
or
‘coloured’ or belongs to any category of persons disadvantaged by
unfair discrimination. you will have to allow the
affirmative action in their
favour, even though this seems unfair.
I cannot see what purpose that
phrase ‘or categories of persons’ serves other than to free any
person being ‘advanced’
of the onus of showing they were
disadvantaged by apartheid, or unfairly discriminated against in the
past.
Will all women be able to claim forever under that clause that they
must get special consideration for ‘advancement’ or
‘protection’? If so, the equality clauses elsewhere in the
constitution ultimately mean nothing.
In the last part of my letter, I
want to argue for the deletion of one other phrase: the words ‘or
advance’ in the second
sentence of 9(2).
I fail to see how one
person can be ‘advanced’ on the grounds of being disadvantaged in
the past, without unfairly discriminating
against persons who had nothing
whatsoever to do with the past discrimination, and may not have benefited from
it either.
I doubt my latter point will succeed, but I will be pleased if
at least my main point is taken.
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