Manuel vs Manyi - Foul is Fair...
There is something weird going on with unpredictable reactions to the fisticuffs between Trevor Manuel (in the right corner wearing coloured shorts, seconded by Lindiwe Sisulu) and Jimmy Manyi (on the opposite side wearing black shorts, with Paul Ngobeni in his corner). The former has come out passionately in his unwavering support of the non-racial ethos of the new constitutional order in South Africa, while the latter seems to favour gross social engineering of the kind last seen in our nation's long gone and unlamented Verwoerdian era. Of course, the Manyian version of social engineering is the flip side of the apartheid coin. It involves the movement of so called coloureds from the Western Cape - where they are, by his calculations, "over-concentrated" - to other provinces in which they are in short supply. Guaranteed rights to freedom of association and freedom of movement are conveniently overlooked in Manyi's efforts to achieve a strained form of employment equity in which all employers are magically supposed to achieve national demographic "representivity" among their employees irrespective of competence and availability of job seekers. Nor dare Manyi suggest that the cure for "over-concentration" may be the dilution of predominance by forcing other under-represented groups to resettle themselves in the reputedly inhospitable Western Cape.There is a suggestion abroad that Manuel has been left hanging out to dry by the ANC, South Africa's premier and pioneering non-racial organization. Although Manyi has been made to apologize begrudgingly and indirectly, via a government spokesman, he has displayed no contrition for his bizarrely expressed attitude towards those whom he regards as insufficiently black to reap the full benefits of their liberation from the strictures of apartheid social engineering. On the contrary, many of the structures and leaders in the tripartite alliance have come out in support of his stance. The weird part is that there is no sense in siding with the protagonist who has been made to apologize for the sentiments he has expressed on the fraught subject of race relations in the new order in South Africa. Yet there is a perception that the Zapiro cartoon with a forlorn looking Manuel drip-drying on the ANC's washing line hits the nail on the head.
It was Nelson Mandela who said:
"For to be free is not merely to cast off one's chains, but to live in a way that respects and enhances the freedom of others."
The unanswered question that hangs over the bout between Manuel and Manyi is whether the Africanist sentiments expressed by Manyi can be said to "respect and enhance the freedom" of the so called coloured people who, in his view, so inconveniently overpopulate the Western Cape. The question is unanswered because it is too difficult to fit the inherent racism of Manyi's thoughts into the framework of the law and the Constitution, supposedly (according to the President) the guiding light of all ANC policies.
It is to the law that the nation must turn in order to determine the ultimate victor in the fight that has broken out into the open between Manyi representing Africanist sentiment in the ANC and Manuel, representing the non-racial ethos of the tri-partite alliance in which the ANC is the majority partner. Racism belongs in the old order and has no place in the non-racial constitutional arrangements now in place. This is not a policy choice, it is the law of the land.
The Bill of Rights makes this perfectly clear. It expressly states that everyone is equal before the law and has the right to equal protection and benefit of the law. Freedom of association and freedom of movement are also guaranteed, thus closing down wriggle room for those bent on harmful social engineering misguidedly intended to reverse the ill-effects of apartheid.
The provisions of section 9(3) of the Constitution are instructive:
"The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race... ethnic or social origin..."
Racial (or any other) discrimination is unfair unless it is established that any contemplated discrimination is fair. In other words, any racially discriminatory law, policy, measure or suggestion, such as that made by Manyi to those he regards as the "over-concentrated" in the Western Cape, is presumed to be unfair unless he can establish that it would be fair to resettle them in areas in which they have never lived in order, for example, to pursue the "representivity" goal of the type of employment dispensation favoured by the economist in Manyi.
The rule of law will not countenance that which is substantively unfair. The constitutional provisions cited and discussed above confirm this basic tenet of the dispensation under which all who live in South Africa are governed.
In order to justify the point of view he espouses, and in respect of which he has widespread unthinking support, Manyi may be driven to invoke section 9(2) of the Bill of Rights:
"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 and advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken."
His difficulty in so doing is that the very deliberately chosen criterion in the section is "disadvantage" not "race". It is obviously appropriate twenty years after the abolition of racial population registration that disadvantage should be the guiding light of affirmative action measures. This is what is constitutionally required. To lump human beings together into ill-fitting and merely notional racial categories foisted on the nation by apartheid just won't do. We have no race groups defined by law anymore, correctly so. Archbishop emeritus Desmond T!u T!u (formerly known as Tutu) illustrated this dramatically when he announced to the students at UWC: "I am coloured." His personal genome proves that this is true. San blood runs in the veins of the distinguished cleric who for so long has represented the moral conscience of the land. The three click sounds of San origin now in isiXhosa suggest that many of the Arch's compatriots who may regard themselves as "black", especially those with roots in the Eastern Cape, are biologically "coloured" in the sense of being of mixed heritage.
Protecting and advancing persons disadvantaged by the unfair discrimination of the past (remember, unfair discrimination is now illegal) does not involve making people move from their homes and away from the cultural and language roots which they have established. This is inherently unfair and also a violation of the rights to culture and language protected by the Bill of Rights. There are no snoek to catch in Limpopo.
Our sovereign and democratic state is founded on human dignity, the achievement of equality and the advancement of human rights and freedoms for all. Non-racialism is enshrined in section 1 of the Constitution as a foundational value of the new South Africa. So are the supremacy of the Constitution itself and the rule of law.
Those responsible for fashioning affirmative action measures should bear these values in mind. Greater efforts to educate, train and improve the skills of the disadvantaged of all categories will surely bring the day on which all South Africans are simply regarded as equal members of the human race a lot closer than the Manyian tinkering with labour laws. We have to look forward to swiftly and successfully achieving the non-racial future envisioned by Nelson Mandela and the other founders of our new order. Backward looking perpetuation of the divisions of the past by force of law is not the right way to go about this delicate but decisive task. Manuel's non-racial approach is infinitely preferably to harking back to the contrived classifications of the past so unnecessarily.
Paul Hoffman SC
March 2011
