Tshwane judgement problematises history of Shaka Zulu, Mahatma Ghandi

22 Jul 2016

Pretoria was created as the capital of an Afrikaner Republic that expressly subordinated black people


The Constitutional Court judgement that went against Afriform’s bid to maintain apartheid era street names in Tshwane, did not only come with Chief Justice Mogoeng Mogoeng branding of Afriforum as somewhat selfish, insensitive and divisive.

In their minority judgement Justices Cameroon and Froneman controversially delve into complexities of South African history touching if shaking the iconic positions of leaders like Shaka Zulu and Mahatma Ghandi. They do the subtle problematisation of Shaka Zulu and Mahatma Ghandi. Here follows some of the extracts from the judgements:


Mogoeng on sense of belonging

Our shared values that underpin our constitutional vision cannot be achieved when one race almost always has its way or a near-absolute monopoly of respect and honour.

That is a recipe for the illegitimate retention of exclusive privilege, undeserved domination of the past and future hostilities as opposed to inclusivity, reconciliation and the unity in diversity we have undertaken to pursue and achieve.  No measure of sophistry, contortion, or strategy ought to be allowed to entrench any form of racial domination or exclusivity to privilege, honour and opportunities.  For that is inconsistent with our foundational values and constitutional vision.  South Africans of all races must unite to secure a brighter, peaceful, stable and prosperous tomorrow by allowing the previously excluded groups, to also be honoured in their own land.  They too should at long last have a sense of belonging.

Mogoeng on Afriforum as insensitive, divisive, somewhat selfish

Afriforum may protest at the first judgment’s characterisation of their historically rooted sense of place and belonging as “highly insensitive to the sense of belonging of other racial groups”.  It will jib at the suggestion that it “is divisive, somewhat selfish and does not seem to have much regard for the centuries-old deprivation of ‘a sense of place and a sense of belonging’ that black people have had to endure”.

But for that Afriforum has largely itself to blame.  In its founding affidavit Afriforum repeatedly refers to the Municipality’s attempts at correcting “so-called ‘historical injustices of the past’”.  It supplies evidence that the old street names were of— “historical figures of Pretoria, artisans, business people, surveyors who played a central role in the layout as it currently exists, prominent figures in history (most have made their contributions long before the so-called apartheid), city fathers and legal practitioners (including attorneys, advocates, magistrates and even a judge).  It is clear that these people played a direct and positive role in the city as it exists today. It would therefore be grossly inaccurate to suggest that these persons have a direct connection with the so-called historical injustices.”

So-called!  This embodies the kind of insensitivity that poisons our society. There were historical injustices.  Apartheid was all too real.  And it was profoundly pernicious.  These facts are not “so-called” figments of black people’s imagination. Pretoria was created as the capital of an Afrikaner Republic that expressly subordinated black people. It became the capital city of a South Africa that grossly magnified that discrimination by systematic segregation and exclusion.  Until just decades ago, black people could not own and live in property along Pretoria’s beautiful jacaranda-lined streets.  The historical figures after which those streets were named benefited directly from the fact that they, unlike black people, could own and live on city properties.

Those benefits have not dissipated.  They still accrue primarily to white residents.  Their historical advantage in acquiring property in the past dwells on, in deep systemic privilege and injustice.  To deny these realities or avert one’s eyes to them lays one open to a charge that what one seeks to protect is not culture, but a heritage rooted in racism.  The Constitution protects culture, yes, but not racism.77

So we disagree profoundly with Afriforum’s view of history.  And we think it would be better for white Afrikaans people, and indeed everyone else, to find their sense of place and belonging, not only in the past, but also in a shared future, one the Constitution nurtures and guards for all of us, together, united in our diversity.  But does that entitle us to say that Afriforum members’ sense of belonging, place and loss is not real and that it should not also be recognised under the Constitution? The answer is No.

Cameroon and Froneman on recognition of cultural rights of people with oppressive histories

What does concern us is the broad statement in the third judgment that embraces the implication of the first judgment, that any reliance by white South Africans, particularly white Afrikaner people, on any historically-rooted cultural tradition finds no recognition in the Constitution, because that history is inevitably rooted in oppression.

What does that mean in practical terms?  Does it entail that, as a general proposition, white Afrikaner people and white South Africans have no cultural rights that pre-date 1994, unless they can be shown not to be rooted in oppression?  How must that be done?  Must all organisations with white South Africans or Afrikaners as members now have to demonstrate that they have no historical roots in our oppressive past?  Who decides that, and on what standard?

This will be of concern not only to white South Africans, or to Afrikaners.  It may also be of concern to those who take pride in the achievements of King Shaka Zulu, despite the controversy about his reign, and those who nurture the memory of Mahatma Gandhi’s struggles in South Africa, despite some repugnant statements about black Africans. Our country has a rich and complex history.  It has meaning for each of us, in diverse ways, which the Constitution accommodates and respects.  The complexities of history cannot be wiped away, and the Constitution does not ask that we do so.

Here is the full judgement: Tshwane Municipality versus Afriforum Constitutional Court 2016 Judgement

This piece was lifted from ProBonoMatters


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