Minority Protection in Post-Apartheid South Africa : Human Rights, Minority Rights, and Self-Determination 9780313012143, 9780275973537

Citation preview

MINORITY PROTECTION IN POST–APARTHEID SOUTH AFRICA

MINORITY PROTECTION IN POST–APARTHEID SOUTH AFRICA Human Rights, Minority Rights, and Self-Determination Kristin Henrard

Perspectives on the Twentieth Century Edward Beauchamp, Series Adviser

Library of Congress Cataloging-in-Publication Data Henrard, Kristin Minority protection in post-apartheid South Africa : human rights, minority rights, and self-determination / Kristin Henrard. p. cm.—(Perspectives on the twentieth century; ISSN 1538–9626) Includes bibliographical references and index. ISBN 0–275–97353–0 (alk. paper) 1. Minorities—Legal status, laws, etc.—South Africa. 2. Self-determination, National—South Africa. 3. Apartheid—South Africa. I. Title. II. Series. KTL2467.M56H46 2002 342 680873—dc21 2001058047 British Library Cataloguing in Publication Data is available. Copyright © 2002 by Kristin Henrard All rights reserved. No portion of this book may be reproduced, by any process or technique, without the express written consent of the publisher. Library of Congress Catalog Card Number: 2001058047 ISBN: 0–275–97353–0 ISSN: 1538–9626 First published in 2002 Praeger Publishers, 88 Post Road West, Westport, CT 06881 An imprint of Greenwood Publishing Group, Inc. www.praeger.com Printed in the United States of America

The paper used in this book complies with the Permanent Paper Standard issued by the National Information Standards Organization (Z39.48–1984). 10 9 8 7 6 5 4 3 2 1 Copyright Acknowledgment The author and publisher gratefully acknowledge permission to reprint the following material: Chapter 1 of this book contains a summary of Kristin Henrard’s Devising an Adequate System of Minority Protection: Individual Human Rights, Minority Rights and the Right to Self-Determination (The Hague: Kluwer Law International, 2000).

I would like to dedicate this book to all my South African friends who have continuously supported my work, and more specifically to Ross Kriel, Fatima Laher, Mutle Mogase, and Judge Johann Kriegler.

Contents

Series Foreword by Edward R. Beauchamp

ix

Preface

xi

Abbreviations Introduction

xiii xv

1.

Theoretical Framework

2.

Relevant Background Information on South Africa

39

3.

South Africa’s 1993 or Interim Constitution: Constitutional Negotiations and Brief Analysis in Terms of Minority Protection

69

Negotiations Leading up to the 1996 Constitution and the Varied Approaches Adopted to Accommodate South Africa’s Population Diversity

103

The Constitutional Building Blocks for Post-Apartheid South Africa’s Approach to Minority Protection/ Accommodation of Population Diversity

145

The Implementation and Application Phase Concerning Minority Protection/Accommodation of Population Diversity in Post–Apartheid South Africa

165

4.

5.

6.

1

Conclusion

265

Bibliography

271

Index

305

Series Foreword

Whoever first coined the phrase, “When the siècle hit the fin,” described the twentieth century perfectly! The past century was arguably a century of intellectual, physical, and emotional violence unparalleled in world history. As Haynes Johnson of the Washington Post has pointed out in his The Best of Times: The Clinton Years (2001), “since the first century, 149 million people have died in major wars; 111 million of those deaths occurred in the twentieth century. War deaths per population soared from 3.2 deaths per 1,000 in the sixteenth century to 44.4 per 1,000 in the twentieth.”1 Giving parameters to the twentieth century, however, is no easy task. Did it begin in 1900 or 1901? Was it, as in historian Eric Hobsbawm’s words, a “short twentieth century” that did not begin until 1917 and end in 1991?2 Or was it more accurately the “long twentieth century,” as Giovanni Arrighi argued in The Long Twentieth Century: Money, Power, and the Origins of Our Times?3 Strong cases can be made for all of these constructs and it is each reader’s prerogative to come to his or her own conclusion. Whatever the conclusion, however, there is a short list of people, events, and intellectual currents found in the period between the nineteenth and twenty-first centuries that is, indeed, impressive in scope. There is little doubt that the hopes represented by the Paris Exhibition of 1900 represented the mood of the time—a time of optimism, even utopian expectations, in much of the so-called civilized world (which was the only world that counted in those days). Many saw the fruits of the Industrial Revolution, the application of science and technology to everyday life, as having the potential to greatly enhance life, at least in the West. In addition to the theme of progress, the power of nationalism in conflicts— not only over territory, but also economic advantage and intellectual dominance—came to characterize the last century. It was truly a century of war, from

x

Series Foreword

the “little” wars of the Balkans and colonial conflicts of the early 1900s to the “Great” War of 1914–1918 that resulted in unprecedented conflict over the remainder of the century. Every century has its “great” as well as “infamous” individuals, most often men, although that too would begin to change as the century drew to a close. Great political figures such as Lenin, Trotsky, Stalin, Hitler, Mussolini, Churchill, the two Roosevelts, de Gaulle, Adenauer, Mahatma Gandhi, Mao Tse-Tung, Ho Chi Minh, and others were joined in the last part of the century by tough competent women like Golda Meir, Indira Gandhi, Margaret Thatcher, and scores of others who took the reigns of power for the first time. A quick listing of some major events of the century includes World War I, the Russian Revolution, the Rise of Fascism, the Great Depression of the 1930s, the abdication of Edward VIII, Pearl Harbor and World War II, the unleashing of atomic bombs on Hiroshima and Nagasaki, the long Indochina War, the Cold War, the rise of nationalism (with an increase in nation states from about fifty to almost two hundred), the establishment of Israel, the triumph of the free market, an increasingly strident battle between religious fanaticism and secular preferences, and on and on. At the same time that these events occurred, there was a great creative flourishing of mass entertainment (especially television and the Internet), not to mention important literary, dramatic, cinematic, and musical contributions of all kinds. These elements incorporate some of the subject matter of this new series focusing on “Perspectives on the Twentieth Century,” which strives to illuminate the last century. The editor actively seeks out manuscripts that deal with virtually any subject and with any part of our planet, bringing a better understanding of the twentieth century to readers. He is especially interested in subjects on “small” as well as “large” events and trends, including the role of sports in various societies, the impact of popular music on the social fabric, the contribution of film studies to our understanding of the twentieth century, and so on. The success of this series is largely dependent on the creativity and imagination of its authors. Edward R. Beauchamp NOTES 1. Haynes Johnson, The Best of Times: America in the Clinton Years (New York: A James H. Silberman Book, Harcourt, Inc., 2001), p. 3. 2. Eric Hobsbawm, The Age of Extremes: A History of the World, 1917–1991 (New York: Pantheon, 1994). 3. Giovanni Arrighi, The Long Twentieth Century: Money, Power, and the Origins of Our Times (London: Verso, 1994).

Preface

Prior to expressing words of gratitude towards several of the persons in South Africa who have helped me with my research for this book, it seems appropriate to thank the Flemish Government for enabling me to take up a six-week internship at the Constitutional Court of South Africa and for financing the months that I monitored the constitutional negotiation process in 1996. During my numerous and often long research periods in South Africa I have benefited from the valuable support of Judges Kriegler and Sachs of the Constitutional Court of South Africa. I have also had extensive help from several academics at South African Universities and more specifically from Iain Currie, Jonathan Klaaren, John Dugard, Sharack Gutto, and Nazir Carrim at the University of the Witwatersrand; Rassie Malherbe, Deon Geldenhuys, George Barrie, and Ich Rautenbach at Rand Afrikaans University; Johann van der Westhuizen, Christoph Heyns, Johan Beukman, Nic Olivier, and Sarie Berkman at the University of Pretoria; Dawid van Wyk and Johan Potgieter at the Universita of South Africa; Gerhard Erasmus, Willie Breytenbach, Hennie Kotze, and Laurens du Plessis at the University of Stellenbosch; Tom Bennett, Herman Giliomee, Neville Alexander, and Ana Deumert at the University of Cape Town; David Gough, Terry Volbrech, and Zubeida Desei at the University of the Western Cape; Gerhard Mare at Natal University and finally Theo Du Plessis and Hennie Strydom at the University of the Free State. I also would like to mention the substantial and ongoing assistance that I received from several members of the Department of Education (Markie Lane, Rueben von Rensburgh, Eben Boshoff, and Trevor Coombe), of (Justice and) Constitutional Development (Johan Beukman, Ando Donkers, Marius Steyn, John Meiring, and Nic Olivier); of Arts, Culture, Science and Technology

xii

Preface

(Anne-Marie Beukes). Equally valuable have been the numerous contacts and discussions with Gordon Hollamby and Tienie Cronje of the South African Law Commission, John Pampallis of the Centre for Education Policy Development, Advocate Bertelsmans, Paul Muskar, and Carol-Anne Spreen. Last but not least, I want to pay a special tribute to the previous Minister of Justice, Dullah Omar, who has helped me in numerous ways throughout my research for this book. Penultimately, I want to convey my gratitude to Erik Koppe and Ronald and Janet Bijleveld for helping me out with computer-related problems and also to my English-speaking friends who have proofread the chapters for linguistic corrections, more specifically Adam Watson, Ross Kriel, Fatimah Laher, Gareth Davies, and Ivor Chipkin. Finally, I want to acknowledge that the research for and writing of this book would not have been possible without the support of the Council for Scientific Research of Flanders, neither without the integration in the Department of Public Law at the Catholic University of Leuven and later in the Department of Constitutional and International Law at the University of Groningen.

Abbreviations

ANC

African National Congress

CA

Constitutional Assembly

CODESA

Congress for a Democratic South Africa

CP

Constitutional Principle

DA

Democratic Alliance

DACST

Department of Arts, Culture, Science and Technology

DP

Democratic Party

ECHR

European Convention on Human Rights

European Language Charter

European Charter for Regional and Minority Languages

Framework Convention

Framework Convention for the Protection of National Minorities

FF

Freedom Front

GNU

Government of National Unity

HSRC

Human Science Research Council

ICCPR

International Covenant on Civil and Political Rights

IFP

Inkatha Freedom Party

KAS

Konrad Adenouer Stiftung

LANGTAG

Language Plan Task Group

MPNP

MultiParty Negotiating Process

NCOP

National Council of Provinces

NNP

New National Party

xiv

Abbreviations

NP

National Party

PAC

Pan-African Congress

PANSALB

Pan-South African Language Board

SALC

South African Law Commission

UDM

United Democratic Movement

UN Declaration on Minorities

United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities

Introduction

Considering the phenomena of aggravated new forms of discrimination, massive ethnic cleansing, and a resurgence of nationalism, there is ample justification to dwell on issues of minority protection and the closely related issues concerning the accommodation of population diversity within state borders. This book focuses on the South African approach to minority protection against the background of a more theoretical framework that is set out in the first chapter.1 There are several reasons why South Africa makes an interesting case study in this regard. The country has to deal with the legacy of apartheid, which abused minority rights and identity rhetoric extensively. It is furthermore still going through a massive transformation process geared towards nation building, the realization of real, substantive equality and full democratization, while trying out and developing a diversified set of measures to cope with its population diversity. The aim of this work is thus to study the development and implementation of these national measures and to evaluate whether and to what extent they contribute to minority protection and the accommodation of the country’s population diversity. At the same time, the measures concerned will be set against the theoretical framework and an assessment will be made of the extent to which the developments in post-apartheid South Africa reflect an acknowledgement of the interrelation between individual human rights, minority rights, and the right to self-determination for an adequate minority protection. The first chapter sets out the broad theoretical framework against which the case of post-apartheid South Africa will be studied. The second chapter then turns to the case study of South Africa and covers several issues. In a first section the choice of South Africa as case study is justified. Secondly, a short description is given of the scope of the minority phenomenon that is studied in this country.

xvi

Introduction

Subsequently, certain aspects are discussed of South African history that are relevant from a minority protection angle. The third chapter goes on to discuss the constitutional negotiations leading up to the 1993 or interim Constitution, while the fourth chapter covers the next and even more important step of the constitutional negotiation process, namely the negotiations preceding the adoption of the 1996 or so-called final Constitution. The substantive analysis of the numerous and diversified constitutional approaches adopted to accommodate South Africa’s population diversity is also covered by the latter chapter. The following chapter evaluates the constitutional foundations of post-apartheid South Africa’s overall approach to minority protection/accommodation of population diversity. This evaluation is first of all in terms of the right to identity of minorities and subsequently more explicitly in terms of the interrelation between individual human rights, minority rights, and the right to self-determination for an adequate system of minority protection. The final chapter deals with the implementation phase of the several constitutional policies that are relevant from a minority protection angle. Also in this chapter both the analysis and evaluation are in terms of the right to identity of minorities and the interrelation between individual human rights, minority rights, and the right to self-determination. Finally, a conclusion is formulated. NOTE 1. The theoretical framework is fully developed in K. Henrard, Devising an Adequate System of Minority Protection, Kluwer, London, 2000.

1

Theoretical Framework

INTRODUCTION This chapter contains the broad theoretical framework regarding minority protection that will form the background of the case study on post-apartheid South Africa. A concise overview of the historical developments regarding minority protection is followed by an exposition of the two basic principles of a full-blown system of minority protection. Subsequently the right to identity of minorities and the principle of substantive equality are focused upon, the latter not only being the goal but also the basis for restrictions of minority protection measures. A succinct discussion of the meaning of the concept “minority” precedes the analysis of the respective contribution to minority protection of individual human rights, minority rights, and the right to self-determination. Throughout this analysis the theme of the interrelation between the three categories of rights to obtain an adequate system of minority protection is developed. The theme implies that while each of these three categories of rights (to the extent that they concern members of minorities) contributes to minority protection an adequate system of minority protection would require a combination of all three. CONCISE OVERVIEW OF THE HISTORICAL DEVELOPMENTS REGARDING MINORITY PROTECTION Documents regarding minority protection can be found dating back from before the League of Nations. They are mainly bilateral treaties that were especially focused on religious minorities and aimed at the protection of freedom of religion of their members.1 However, it is most of all the network of regulations

2

Minority Protection in Post–Apartheid South Africa

at the time of the League of Nations following World War I that brought the issue of minorities to the forefront.2 The idea behind the provisions on minority protection in the minority treaties, the peace treaties, and certain unilateral declarations of the League was that the thus established minority protection mechanisms would prevent these population groups from developing into a factor of instability. There was definitely no attempt to formulate generally binding regulations on minority protection. To the contrary, each of the different instruments regulated the situation of specific states and certain population groups within them.3 As a minority’s right to identity is a central concept in this work, it is relevant to emphasize that whereas the right to identity was only generally protected by article 27 of the International Covenant on Civil and Political Rights (ICCPR), the minority provisions of the League of Nations are regarded as “designed to protect the right to an identity of the minorities concerned.”4 It is generally acknowledged that the United Nations (UN) at its establishment after World War II took a completely different approach to issues of minority protection than had the League of Nations. The initial point of departure for the UN was that the principles of universal respect for the fundamental human rights and freedoms, in combination with the prohibition of discrimination, would also be the solution for the minorities issue. In this way, the rights of individuals would be protected in a sufficient way to realize all the rights desired by minorities.5 However, it was soon realized that the protection of minorities is a delicate matter that deserves special attention. A certain degree of interest in and attention for the minority issue had come to the forefront in the mandate of the UN Commission on Human Rights6 as well as the establishment of the SubCommission on the Prevention of Discrimination and the Protection of Minorities in 1947.7 The further development of the special attention to minorities is reflected in article 27 ICCPR and the 1992 UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities (the UN Minorities Declaration). THE TWO PILLARS OR BASIC PRINCIPLES OF A FULL-BLOWN SYSTEM OF MINORITY PROTECTION AND THE PRINCIPLE OF SUBSTANTIVE EQUALITY A full-blown system of minority protection is described as a conglomerate of rules and mechanisms enabling an effective integration of the relevant population groups and allowing them at the same time to retain their separate characteristics. Such a system would be based on two pillars or basic principles: the prohibition of discrimination on the one hand and measures designed to protect and promote the separate identity of the minority groups on the other. The first pillar deals with the rules that are expressions and further elaborations of the prohibition of discrimination. Such rules guarantee formal equality and at the same time are conclusive to substantive equality. They are, consequently,

Theoretical Framework

3

considered to be a necessary prerequisite of the second pillar referring to rules that are actively geared towards realizing substantive equality. Substantive or real equality can require a differential treatment regarding people in different circumstances. For (members of) minorities these rules would be focused on obtaining or even guaranteeing appropriate means to retain and promote their separate characteristics.8 The second pillar presupposes the existence of the first one and builds on its acquis (essence and achievements) without contradicting it. The double track of minority protection was clearly expounded the first time by the Permanent Court of International Justice (PCIJ) in its advisory opinion regarding the minority schools of Albania9 and was also taken up by the UN during the first session of the UN Sub-Commission on the Prevention of Discrimination and the Protection of Minorities.10 It is currently generally accepted that each system of minority protection should follow this double approach. It is also important to emphasize that both pillars, the nondiscrimination principle in all its manifestations and the special minority measures, can be considered to be implementations of the equality principle.11 Nevertheless, the second pillar or the special measures for (members of) minorities is not entirely uncontroversial. Certain authors still argue that the protection offered by the equality principle in combination with individual human rights is sufficient for minorities in that no special measures would be needed.12 THE RIGHT TO IDENTITY OF MINORITIES AND THE PRINCIPLE OF SUBSTANTIVE EQUALITY AS GOAL AND LIMITATION OF MINORITY PROTECTION MEASURES As the right to identity and the principle of substantive equality are key concepts in this work, some further considerations in this regard are appropriate. Article 27 ICCPR,13 the international law provision on minority rights par excellence, is generally referred to when the right to identity is directly related to minority protection. Although this article does not mention that right explicitly, it is nevertheless generally claimed that “article 27 is concerned with the right to identity of minorities even if this right is not named.”14 More recent statements on the rights of minorities contain even explicit affirmations of this right to identity.15 It can also be pointed out that, more generally, a clear trend can be noticed, inter alia, in the International Labour Organization (ILO), United Nations Educational, Scientific and Cultural Organization (UNESCO), and Organization for Security and Co-operation in Europe (OSCE), to the effect that “the right to identity has secured a prominent place in the discourse of human rights.”16 The Badinter Arbitration Commission, established in 1991 by the EU in the wake of the breakup of Yugoslavia, explicitly recognized the right to identity of minorities as being part of the “peremptory norms of general international law.”17 In view of the sensitivity surrounding “special” measures for (members of) minorities, for the rest of the population of the state, and also for the states themselves, it is the more important to underline that the principle of substantive

4

Minority Protection in Post–Apartheid South Africa

equality is not only the basis for measures implementing the right to identity of minorities but at the same time confines the scope of such special measures.18 Minority protection cannot be used to support claims for measures that would institute certain privileges for (members of) minority groups that cannot be justified by the demands of substantive equality. In this regard, one can think of some of the demands of a section of the Afrikaner minority in post-apartheid South Africa as they (might) reflect a desire to go back to apartheid times or preserve affluence and advantages obtained during apartheid. DEFINITION OF THE CONCEPT, “MINORITY” The point of departure in a discussion regarding the definition of the concept, “minority,” is that up till now there has been no generally accepted definition at either the international or the European level.19 There does seem to be a measure of agreement regarding certain elements of such a definition, even though some of these common elements are criticized and are not always interpreted in the same way. Most of the time a distinction is made between objective and subjective components of such a definition.20 The objective factors include the following features of minorities: having ethnic, religious, or linguistic characteristics differing from those of the rest of the population/the majority; being a nondominant, numerical minority; and finally, having the nationality of the state concerned. The subjective aspect of the definition demands that there is a sense of community and a collective will to preserve the separate characteristics/identity. The group dimension is an essential feature of the minority reality. It should be underlined that at the European level, both in the OSCE21 and the Council of Europe,22 a transition towards a more pragmatic approach in this regard can be noticed, which also tends to take root at the international level.23 Regarding the objective factor of having separate characteristics, it should be pointed out that certain definitional proposals use “the rest of the population” as reference point, whereas others refer to the “majority of the state.” The former has the advantage. It is easier to argue that the point of reference need not necessarily be one monolithic bloc but can consist of several ethnic, religious, or linguistic groups.24 That argument is especially important for plural societies like South Africa, where there is no clear majority group, and all the ethnic, religious, and linguistic groups could be minorities insofar as they satisfy the other relevant conditions.25 The numerical minority position can be discussed from two angles: one regarding the suitability of a numerical threshold and one regarding the territorial reference base. It is very difficult to give an absolute number or a percentage26 that can be used as numerical threshold, and consequently, it is not advisable to include such a threshold in the definition of minority. The size of the population group concerned has a legitimate role to play in the determination of the (extra) demands that can be made from the state: these demands should not be disproportionate to the concomitant benefits for that group.27

Theoretical Framework

5

Furthermore, the reference to the “rest of the population of the state” raises the interesting question whether a minority, including its numerical minority position, can be determined in comparison with the population of a region, a province, or some other kind of internal political structure within a state. The Human Rights Committee (HRC) adopts a rather restrictive stance in this regard as exemplified by its views in Ballantyne et al. v Canada.28 According to the HRC, the English-speaking persons in the French-speaking province Québec cannot be considered a minority because they constitute the majority nationwide. Article 27 ICCPR would thus only apply to minorities identified at the national level.29 Such an attitude is especially negative for population groups that are minorities in a certain region but constitute the majority nationwide. The correct approach regarding the issue of regional minorities is arguably that the internal political entities should be taken as a frame of reference for the definition of minorities, when and insofar as these entities have certain concrete competencies that can influence the population group concerned.30 Nondominance is generally considered an essential component of a definition of “minority” and can consequently be found in most definitional proposals. The factor of a numerical minority position is closely related to the fact that the need to protect minorities is the result of their weak, vulnerable, and thus nondominant position.31 It is exactly in these situations, in which the numerical minority rules the state, that the necessity of a further criterion becomes apparent. The criterion of nondominance denies the qualification “minority” to exactly such groups that obviously do not need special attention.32 Suppressed majorities, to the contrary, can be argued to have rights going beyond those of minorities, such as the necessity for liberation and the right to rule themselves.33 A fourth factor that is often mentioned when discussing the concept of minority is that its members should have the nationality of the state of residence. Traditionally it was argued that the members of a certain population group should satisfy this nationality requirement for the group to be considered a minority. Although this argument is still rather prevalent,34 it is becoming more and more controversial and has to contend with mounting criticism.35 Nationality legislation is all too prone to manipulation by the state in that a state could easily exclude certain population groups from the status of minority and the concomitant protection, although these groups would otherwise qualify.36 A nationality requirement is also difficult to satisfy by nomadic groups which are therefore de facto denied the status of minority.37 The Human Rights Committee has in two of its General Comments38 explicitly opted for a concept of minority that is not limited to persons having the nationality of the state concerned. Although the question of whether or not minorities can also comprise groups of aliens is not yet conclusively answered, the stance of the Human Rights Committee arguably indicates that there is a tendency at the international level to answer it positively. The Committee also takes a very flexible stance regarding the related requirement of having durable ties with the state concerned in that it proclaims that the length of residence in the

6

Minority Protection in Post–Apartheid South Africa

state is irrelevant and that therefore immigrants and even visitors could qualify as minorities in the sense of article 27 (depending on the other factors).39 Finally, regarding the requirement of a collective will to preserve their own separate characteristics and identity, there should be scope for implicit ways of demonstrating that will, in that the mere continued existence of a group could be considered sufficient.40 Indeed, several reasons can explain a “silence” of a minority. On the one end of the continuum, there is the possibility that the group accepts the status quo, but a silence can also be the result of certain political circumstances—as in an official policy of forced assimilation.41 The following will be used as working definition of the concept, “minority,” in this book: [A] “minority” is a group numerically smaller than the rest of the population of a state. The members of this nondominant group have ethnic, religious, or linguistic characteristics different from those of the rest of the population and show, even implicitly, a sense of solidarity focused on the preservation of their culture, traditions, religion, or language.

There is ongoing debate about the relation between national minorities and ethnic minorities. It is often claimed that national minorities would have an extra dimension that ethnic minorities would not: national consciousness; group consciousness, often related to a political aspiration for a degree of autonomy: or even independence.42 However, the official and other proposals of definition of national minority in the Council of Europe seem to reveal that both have more or less the same content, since not a single reference is being made to an additional element that would make “national minorities” a special subcategory of “ethnic, religious or linguistic minorities.”43 Consequently, the concepts of national minority and ethnic, religious, or linguistic minority will be used as equivalents in this book. This approach can be considered as an additional element of the proposed working definition.

THE CONTRIBUTION OF INDIVIDUAL HUMAN RIGHTS TO MINORITY PROTECTION Theoretical Considerations The first pillar of a full-blown system of minority protection is the prohibition of discrimination, which is generally taken together with individual human rights. It has been argued in this respect that individual human rights are the conditio sine qua non for a proper system of minority protection. The focus here will be on those human rights especially relevant for (members of) minorities because of their more or less pronounced connection with their right to identity. Whereas I limit myself here to the rights with a more obvious impact on minority protection, I have studied a broader set of human rights, and in more depth, elsewhere.44

Theoretical Framework

7

A first set of human rights with special significance for minorities contains those that amount to a certain protection of the minority phenomenon, because they protect and enable the group dimension as well as the expression, and thus the continuation of the distinctive and separate convictions and ways of life of the respective minorities.45 Freedom of expression and the effective protection of the expression of ideas and convictions that diverge from the majority’s and also the freedom of association are essential for the protection and promotion of the separate identity of minorities. Another set of rights is even more obviously related to the need for minorities to protect and promote their own, separate identity. They concern either specific identity characteristics on the basis of which minorities distinguish themselves from the rest of the population or mechanisms and institutions guaranteeing or improving the protection and promotion of their identity.46 One can think of the right to privacy, the freedom of thought, conscience, and religion, and also all kinds of language rights and cultural rights. Since education is the most important general means for a group to preserve its own, separate identity,47 the regulation regarding education is in many respects important for minorities.48 The right to establish and administer private educational institutions, mother-tongue education, and the content of the public curriculum are some of the most relevant ones. Finally, the right to political participation is of special importance as it potentially enables minorities to have a say regarding matters of importance to them.49 The Human Rights Standards of the European Convention on Human Rights and the Concomitant Jurisprudence The European Convention on Human Rights (ECHR) and the corresponding jurisprudence is arguably the most appropriate choice for analysis in view of the strong reputation of its system of protection and its legally binding supervision procedure. The point of departure of an analysis of the jurisprudence of the European Court (and the European Commission)50 on Human Rights from the angle of minority protection is that the ECHR does not have a specific minority provision. Consequently, the Convention provides only a partial and indirect protection for members of minorities.51 Whereas the thorough analysis of the relevant articles and concomitant jurisprudence can be found elsewhere,52 I limit myself here to the conclusion resulting from that analysis. The importance of human rights for the protection of (members of) minorities cannot be overemphasized.53 The analysis and discussion of the articles of the Convention as well as the jurisprudence that might be relevant for members of minorities has revealed that approaching the minority issue merely through the prohibition of nondiscrimination and individual human rights is rather unsatisfactory.54 The prohibition of nondiscrimination in itself does not guarantee the achievement of substantive equality, which is essential for members of minorities. Consequently, the avenue of individual human rights and the prohibition of

8

Minority Protection in Post–Apartheid South Africa

discrimination gives little support to the right to identity, which is crucial for minorities.55 The right to identity of minorities presumably implies a right to the preservation and development of that separate identity, which in turn might require positive state intervention. Such positive measures are justified from the point of view of the prohibition of discrimination and even required by the principle of substantive equality. The ECHR does not include, contrary to the International Covenant on Civil and Political Rights (ICCPR), an article granting rights to members of minorities, let alone to minorities as such. Furthermore, although the jurisprudence of the Court and the Commission reveals an enhanced awareness of the importance of a firm protection of the individual human rights of members of minorities since the mid ’90s,56 the tendency to be reluctant regarding demands of minorities for the preservation and development of their own identity as well as their specific ethnic, religious, or linguistic characteristics persists. The protection flowing from article 14’s prohibition of discrimination is limited in that the challenged facts have to be part of the field of application of one of the articles of the Convention because of its nonautonomous nature.57 Furthermore, the analysis of the relevant jurisprudence has demonstrated that the Court rather systematically avoids issues of indirect discrimination,58 which is related to the kind of supervision it exercises.59 However, indirect discrimination is as potentially harmful for minorities as direct discrimination.60 Finally, according to established jurisprudence, it is generally not investigated whether article 14 is violated in combination with an article when the violation of the article in se (in itself) is already established.61 This approach is rather prone to criticism when cases are dealing with members of minorities and the equality challenge is central to the case.62 In view of the importance of the prohibition of discrimination for minority protection, it is arguable that a thorough assessment under article 14 of the alleged discrimination would be advisable. It is hoped that the coming into force of Additional Protocol 12 with its general equality clause will overcome several of the flaws just pointed out.63 The rights with a special connection to identity characteristics distinguishing minorities from the rest of the population—language, religion, education, and rights of political participation—are only in a very narrow way present in the Convention, which is related to the absence of an explicit minority protection focus.64 Furthermore, these provisions are interpreted very restrictively by the supervisory organ(s). The interests of the contracting states have a tendency to predominate the balancing process, when the Court and the Commission weigh the respective interests to assess whether or not the Convention is violated. The states enjoy a wide margin of appreciation in this respect, which is not conducive to the realization of minority protection goals. Furthermore, the group dimension of an individual complaint is too often not sufficiently taken into account despite its crucial importance for cases concerning members of minorities.65 The existing institutional structures are generally respected and treated with deference by the supervising bodies.66 Nevertheless,

Theoretical Framework

9

this might be understandable and acceptable in certain circumstances, in view of the need to take all the specific circumstances of a case into account, including the historical development of the state concerned. The set of cases involving Turkey since the mid ’90s can be considered as a turning point in the jurisprudence of the Court (and the Commission) in that they demonstrate an enhanced awareness of the minority problem and the need for a firm protection of the individual human rights of minorities. These cases67 not only reveal that the Court takes a strong stance regarding the right to life, the prohibition of torture and inhuman or degrading treatment and punishment, and the right to personal security but also regarding the freedom of expression and the freedom of association. The Court and the Commission clearly show that their deference vis-à-vis state interests and established structures does not go as far as allowing state fears to erode the human rights of members of minorities. The review bodies underline more specifically that population groups in a state should be able to associate and pursue alternative state structures, provided they do so in a democratic way.68 Although the corresponding explicit statements of the Court and the Commission do not imply a vindication of these alternative state structures, the attention for the minority reality and the corresponding firm protection of their fundamental political rights is undoubtedly important. The supervising bodies are clearly reluctant to recognize group rights (in the sense of rights for a group as such),69 which may be understandable in view of the Convention’s focus on individual rights and freedoms. The minority phenomenon has an intrinsic group dimension that is an argument for a system to be more geared towards this dimension. Still, it remains to be seen how the new Court will approach this (and related) matter. The Court’s and the Commission’s jurisprudence regarding the right to education in article 2 of the first additional protocol emphasizes the absence of regulation regarding the language of instruction. Although the Court infers from the need to make the right to education effective that not each and every state decision would be acceptable in this respect, no attention is given to the generally accepted proposition that the language of instruction should preferentially be the mother tongue of the students.70 Mother-tongue instruction is surely as relevant for the effectiveness of the right to education as receiving an education enabling a person to master (one of) the official language(s) of the state concerned. Nor is the prohibition of indoctrination enshrined in the second sentence of this article interpreted and applied in a way that would entail an optimal protection to members of minorities, as was obvious in the cases concerning Jehovah’s Witnesses.71 According to a steady line of jurisprudence, the contracting states are not obliged to accord subsidies to private educational institutions.72 However, state financial support might be necessary to make the right to establish such institutions effective. A right to establish, under certain conditions, private educational institutions in conformity with their own separate culture, values, language, and religion is definitely very important for minorities. They are distinguished from the rest of the population by their separate identity and also feel

10

Minority Protection in Post–Apartheid South Africa

the need to preserve their own identity inter alia through the education process of the children of the group. However, it is not always that obvious that a certain minority has the financial means to effectively exercise this right. An evolution of the jurisprudence recognizing a certain right to financial support by the state for private educational institutions would thus be very welcome. Finally, the Court and the Commission have underlined several times that neither the Convention nor article 3 of the first additional protocol guarantees a right to self-determination, let alone a right to internal self-determination for minorities.73 It should nevertheless be acknowledged that the minority position was several times taken into consideration in the evaluation of a violation of article 3 of the first additional protocol.74 A right to internal self-determination for minorities is not limited to issues of elections and representation but would also include attempts to establish the necessary political structures so that minorities can influence the political process. The right to internal self-determination for minorities appears to be a necessary complement to individual human rights, and even to minority rights as currently conceptualized, in order to realize an adequate minority protection by which the right to identity of minorities is optimally protected and promoted. Despite the increased attention to certain minority concerns in the set of cases against Turkey, it is arguably still valid to conclude that the traditional standards of human rights, as they are currently interpreted by the supervising bodies, simply do not succeed in addressing certain of the most important and controversial questions regarding minorities and minority protection. Examples of these questions are whether each ethnic group has the right to publicly financed education in its mother tongue; whether administrative boundaries should be drawn in such a way that most, if not all, ethnic minorities form the majority in an administrative area, and whether minorities should be represented as such in Parliament. Additional measures thus seem to be called for and can be taken up in the broader framework of the principle of substantive equality.

THE CONTRIBUTION OF THE CURRENT MINORITY RIGHTS STANDARDS TO MINORITY PROTECTION Article 27 ICCPR When discussing the current minority rights, the first article that comes to mind is article 27 ICCPR, since that is the international law provision on minority protection par excellence.75 The agreement on its formulation and inclusion in the ICCPR amounts to an explicit recognition in an international convention of the need for “special” minority rights, which go beyond the prohibition of discrimination and the protection of individual human rights.76 It is formulated as follows: “In those states in which ethnic, religious, or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, and to use their own language.”

Theoretical Framework

11

The provision is rather vague but the rights explicitly enshrined therein are at first sight limited to the cultural sphere and seem to lack a political or economic dimension.77 However, it should be emphasized that the Human Rights Committee has interpreted the rights guaranteed by article 27 very broadly. The Committee acknowledges, for example, in Kitok v Sweden that an economic activity can be protected under that article as an essential part of the enjoyment of an ethnic group’s culture.78 Although such an interpretation appears to amount to an extension of the scope of this article, it can also be related to the right to identity of minorities, which is said to be in line with the (broader) ratio legis (reason behind the legal protection) of the article. Analogously, a certain political dimension of the right to identity of minorities could also be argued to be protected by article 27 ICCPR. Whereas the ambiguity of the explicit rights of article 27 creates the flexibility to take measures that are neatly tailored to the specific circumstances of each situation, it gives a great amount of discretion to the contracting states,79 which can be used to the disadvantage of minorities. Both the 1992 UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities and the General Comment on article 27 ICCPR of the Human Rights Committee contain further guidelines as to the content of the rights enshrined in article 27.80 It is generally accepted that the prohibition of assimilation81 and the right to identity for minorities82 are enshrined in that article. The question whether positive state obligations flow from article 27, despite its negative formulation, is still undecided, even though it is acknowledged that there is a certain trend in subsequent UN and European documents in that direction.83 It can be argued that if the right to enjoy one’s own culture is meant to be real and effective for members of minorities, it requires states to take positive measures in this regard.84 Arguments based on considerations of substantive equality further support such a positive reading of article 27 ICCPR.85 The Human Rights Committee reflects a similar conviction in its General Comment on article 27, which emphasizes not only positive measures of protection but also positive measures that are to be taken in certain circumstances to protect the identity of a minority and “the rights of its members to enjoy and develop their culture and language and to practice their religion in community with the other members of their group.”86 Most authors underline the hybrid character of article 27 in that it is framed in terms of individual rights but does imply a certain recognition of the group dimension, which results from the protection of the collective exercise of the rights and from the attribution of these rights qualitate qua (in the capacity of member of a minority).87 Neither article 27, nor the current minority rights standards grant a real group right.88 The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, and Linguistic Minorities Although the UN Declaration is significant in that it clarifies the content of article 27 ICCPR,89 it is also burdened by several deficiencies related to the

12

Minority Protection in Post–Apartheid South Africa

reluctance of states to grant significant minority rights.90 It is definitely positive that the Declaration explicitly grants the right to identity, more specifically in article 1.91 The right to participation in the cultural, religious, social, economic, and public—even political—life of the state, the right to have even international contacts with other members of the minority and the (albeit qualified) right to mother-tongue education constitute important clarifications to article 27 ICCPR.92 Another important feature of the Declaration is that it includes some provisions confirming that states have certain positive obligations regarding their minorities.93 However, this is apparently mainly a statement of intent in that the combination with the other articles of the Declaration (including their numerous loopholes94) shows that the real level of positive state obligations is not that extensive.95 It is also important for the interrelation thesis that the Declaration recognizes a certain political dimension of the right to identity of minorities through the participatory rights mentioned above.96 Nevertheless, it cannot be denied that little or no concrete content is given to the right to enjoy one’s own culture. The same can be said about the right to profess and practice one’s own religion, but it should be remarked that no mention is made of the right to participate in the religious life of the state. The right of members of minorities to use their own language is also meagerly developed since only a qualified reference is made to mother-tongue education, while nothing is said about the crucial issue of language use in the communication between members of minorities and the public authorities, nor about the right of minorities to use their own language in private and public media. Other International Instruments Dealing with Rights of Special Relevance for Minorities Besides article 27 ICCPR and the UN Declaration on Minorities, there are several instruments that are especially relevant for minorities. The international instruments97 that will be discussed have a more general field of application, whereas the European ones98 are much more minority specific. In view of the fact that the right to life is the necessary condition to have and develop a distinctive identity, it seems appropriate to start with the Convention on the Prevention and Punishment of Genocide (hereinafter: Genocide Convention) as it protects the crucial right to existence. Although it is not framed in minority terms, the Convention can nevertheless be considered one of the most important multilateral agreements favorable to minorities.99 The Genocide Convention ensures the physical existence of certain groups and the group is thus the direct object of protection of this Convention, irrespective of its size and political importance.100 A second international treaty relevant to minorities is the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). The Convention uses a very broad definition of “racial discrimination” and “race” in

Theoretical Framework

13

that it includes ethnic and national origin,101 thus making the instrument also relevant for ethnic and national minorities.102 The broad field of application of the Convention is important in view of the fact that the contracting states are allowed, and in certain circumstances even obliged, to take special measures to support disadvantaged “racial” groups.103 The extent to which this Convention protects and promotes the minority identity can be deduced from the field of application of the Convention in combination with the positive obligations for the contracting states. The rights enshrined in article 5104 are also important in this respect since they are arguably the kind of rights that allow everyone to lead his/ her life in conformity with his/her own conviction of “being as one is.”105 Although that statement is framed in individual terms, its relevance for the right to identity of minorities is apparent, especially in view of the explicit recognition of positive obligations for the state to adopt special measures for certain groups. A third international convention of considerable importance for minorities is the UNESCO Convention on the Elimination of Discrimination in Education.106 Education is crucial for minorities and their right to identity since education is fundamental to the preservation of a culture, or more broadly, of a group identity.107 An article that is especially important for minorities is article 2(b), which stipulates that the establishment or maintenance of separate educational systems or institutions because of religious or linguistic reasons does not amount to discrimination.108 That provision merely implies that states can allow separate educational institutions in certain circumstances but does not oblige them to allow such institutions. In article 5(1)c the contracting states agree to allow members of national minorities to establish and maintain, under certain conditions, their own educational institutions. Neither provision, though, takes an explicit stance regarding potential positive, including financial, state obligations. Furthermore, article 5(1)c contains several conditions and restrictions that, all in all, hedge rather heavily in the recognition of the right. Indeed, in practice “they enable each state to frustrate the operation of the clauses referred to by, for example, invoking discretionary considerations of national educational policy or the need to avoid compromising sovereignty.”109 European Documents on Minority Rights The only European documents110 that will be discussed here are the most relevant documents of the OSCE, being the 1990 Concluding Document on the Copenhagen Meeting on the Human Dimension, and the two key documents of the Council of Europe, namely the 1992 European Charter for Regional or Minority Languages and the 1995 Framework Convention for the Protection of National Minorities. The OSCE. It should be emphasized that the OSCE often takes a progressive stance regarding minority protection111 and regularly serves as a source of inspiration for the development of standards at other international and European organizations.112 The Copenhagen Document constitutes an important step

14

Minority Protection in Post–Apartheid South Africa

towards an adequate international law system for the protection of minorities.113 However, it cannot be denied that its provisions are still formulated in a very cautious way, containing several escape clauses and loopholes, leaving the states once again a large margin of appreciation.114 The explicit recognition of positive state obligations to protect and promote the minority identity can be highlighted as especially significant.115 Nevertheless, the provision that is generally recognized as being the most far-reaching and meaningful from a minority protection angle is paragraph 35 with the right of members of national minorities to participate in public affairs, including affairs related to the protection and promotion of their identity.116 This paragraph enshrines the right of political participation for members of minorities, thus taking up the corresponding human right and further tailoring it to the situation and specific needs of minorities. Paragraph 35 can arguably be considered a step in the direction of the recognition of group rights and more specifically forms of self-determination for minorities.117 In this regard, that paragraph is relevant for both the interrelation between individual human rights and minority rights and the interrelation between minority rights and the right to self-determination for an adequate minority protection. Regarding the recognition of the group dimension as an essential feature of the minority phenomenon, it is striking that the rights are attributed to members of national minorities and not to minorities as such. Still, it would be difficult to deny that paragraph 35 of the Copenhagen Document moves closer to the recognition of a group right.118 Overall the Copenhagen Document undoubtedly sets important trends that contribute to the realization of an adequate system of minority protection, but the standards are at the same time so vague and shot through with escape clauses that their effectiveness is dubious.119 The Council of Europe. The two most important documents at this level are the European Charter for Regional or Minority Languages and the Framework Convention for the Protection of National Minorities. Regarding the Language Charter, it is first and foremost remarkable that the Charter does not grant any rights to speakers of certain (minority) languages or to certain linguistic groups but is focused on the languages themselves.120 A second important feature of the Charter is that, certain general principles in article 7 aside, the contracting states can (under certain minimum conditions) choose their obligations à la carte.121 A state can even determine to what languages spoken in its territory the Charter will apply, thus taking the state discretion very far.122 The states ratifying the Charter commit themselves (to a greater or lesser extent) to protect and promote the use of regional or minority languages in the domains of education (article 8), judicial authorities (article 9), administrative authorities and public services (article 10), and access to the media (article 11) as well as the domains of cultural, economic, and social activities (articles 12 and 13). The Charter focuses in article 7, section 2 on substantive equality as it underlines that “positive measures aimed at bringing about greater equality between the users of regional or minority languages and the rest of the population are not to be considered as discriminatory against the majority.”123

Theoretical Framework

15

The actual contribution of the Charter to minority protection is of course modulated and balanced in view of its high flexibility with respect to the content of state obligations. The Charter undoubtedly offers important guidelines to several states for the difficult and sensitive issue of accommodation of linguistic diversity.124 The importance of the Framework Convention for the Protection of National Minorities should be highlighted as it represents the first international treaty with a multilateral, general protection regime for minorities.125 Although the Convention is meant to translate the political commitments at the level of the OSCE into legal obligations,126 the member states are ostensibly given a wide measure of discretion. The convention consists of vague program declarations and includes several escape clauses.127 A more detailed analysis of the Framework Convention reveals that several articles of the Framework Convention take up individual human rights of the ECHR, which are of special relevance for minorities,128 while adding at times extra requirements because they are essential for the purpose of safeguarding the specific fundamental right for minorities.129 This tends to support the interrelation between individual human rights and minority rights for an adequate system of minority protection. The explicit recognition of the equality principle in its substantive dimension (article 4, paragraphs 1 and 2) and of the right to identity (article 1) are also important features of the Framework Convention. The Convention enshrines several minority rights, but these rights are each time suitably circumscribed. Article 10 and the right to use the minority language is, for example, strongly qualified regarding the right to use that language in communications with the public authorities.130 Not only is the latter right contingent on finding a high geographical concentration of members of the linguistic minority, it is also weakened by discretionary phrases like “where such a request corresponds to a real need” and “as far as possible.” Article 14 regarding the right to learn the minority language and being taught or receiving instruction in a minority language is equally cautiously formulated. Moreover, states appear not to have an obligation to take positive measures regarding the right to learn the minority language. Particularly the right to instruction in a minority language is very tentatively phrased in that states are not obliged but merely encouraged to provide this service.131 Together with the requirement of territorial concentration, article 14, section 2 also contains vague conditions like “as far as possible” and “within the framework of their education system.” Finally, the meager recognition of the minorities’ group dimension should be acknowledged in that the Framework Convention is carefully drafted so as not to convey group rights to national minorities.132 Conclusion Regarding the Contribution of Current Minority Rights to Minority Protection Although there has been a gradual acceptance and protection of “special” rights for members of minorities since the emergence of article 27 ICCPR in 1966, states remain “reluctant to grant more than the most minimal rights to

16

Minority Protection in Post–Apartheid South Africa

minorities.”133 The current minority rights standards are indeed rather weak in that they include many escape clauses, leaving too much discretion to the states; avoid the recognition of clear positive state obligations regarding minorities; and do not substantially acknowledge and protect the essential group dimension of the minority phenomenon. Nevertheless, it should be acknowledged that minority rights undoubtedly contribute to minority protection in that they take up the essence and achievements of the individual human rights and further tailor the ones that are relevant for minorities to the specific position of minorities and the ensuing needs. In this way, these minority rights give shape to the right to identity of minorities and interrelate with the category of individual human rights for the elaboration of an adequate system of minority protection. Theoretical Framework of Minority Rights: Special Minority Rights and Group Rights Special Rights for Minorities. The reluctance of states to grant “special” minority rights can be related to their fear that such rights would reinforce divisions in the state’s population because they are group specific and would induce secessionist movements.134 The argument that minority rights would constitute a threat to the project of nation building in a plural state can be countered135 by the argument that real unity cannot be forcefully imposed and that “in the long term, unity arises from each group’s belief that there are clear advantages to being in one country—sufficient advantages to offset the unavoidable loss of autonomy that results from its having to share power.”136 In view of the rather negative attitude of states regarding “special” minority rights,137 it is important to underline what would be the goal and the limit of such rights. Special rights for members of minorities are designed to grant analogous rights to members of minorities and to members of the rest of the population. Members of minorities undeniably find themselves in different circumstances compared to the rest of the population and consequently need rights that are adjusted to these distinctive circumstances.138 Special rights would thus not amount to privileges of any sort but would, on the contrary, concern rights that put members of minorities in a position substantively equal to the rest of the population.139 Several authors rely for their arguments in favor of special rights on the opinion of the Permanent Court of Justice regarding the minority schools in Albania, and more specifically its postulate that differential treatment for members of minorities is necessary to realize substantive or real equality.140 The goal of effective equality might indeed necessitate that minorities be granted equivalent rights that are adjusted to their specific situation.141 Special measures for members of minorities are not only necessary to realize real and effective equality142 but also to satisfy the requirement to respect the separate identity of minorities. When the right to equality is combined with the right to identity of minorities, it can be convincingly argued that a balance among the respective situations of

Theoretical Framework

17

the distinctive population groups in a state regarding the preservation of their own identity should be pursued: Government decisions on languages, internal boundaries, public holidays, and state symbols unavoidably involve recognizing, accommodating, and supporting the needs and identities of particular ethnic and national groups. Nor is there any reason to regret this fact. . . . The only question is how to ensure that these unavoidable forms of support for particular ethnic and national groups are provided fairly—that is, how to ensure that they do not privilege some groups and disadvantage others. Insofar as existing policies support the language, culture, and identity of dominant nations and ethnic groups, there is an argument of equality for ensuring that some attempts are made to provide similar support for minority groups.143

Group Rights. The discussion leading up to the adoption of the ICCPR reveals that the 1960s were characterized by an outspoken resistance against group rights on the part of the states. Today, that resistance does not seem to be reduced, as is reflected in the state attitudes regarding special rights for members of minorities and their group-specific nature. At least three forms of criticism regarding group rights are advanced by the opponents of this category of rights. Two have already been dealt with in the discussion regarding the broader category of special rights for members of minorities. They concern the fear that such rights would reinforce the divisions of the state population and would induce the emergence of secessionist movements.144 The third criticism is specific to group rights and deals with the possible threat of a group to its members’ freedom of choice.145 The grant of rights to a group as such could lead to a conflict between these group rights and the individual (human) rights of the members and thus to an erosion of the latter rights. Such a conflict between group rights and individual rights is not insurmountable, as conflicts of rights are quite common among individual rights, leading to a debate about priorities.146 Consequently, for each concrete conflict the respective interests should be balanced and the legitimate, and acceptable restrictions to both categories of rights should be taken into account. Indeed, accepting the recognition of group rights does not automatically imply that those rights should always be given priority.147 Neither individual nor group rights should be considered absolute or absolutely preferable.148 The weighing of the respective interests in such a conflict appears to be easiest with the conception that values group rights because of their ultimate benefit to individual members of the group, albeit that the benefit to the individuals partially results from the benefit to the group to which they belong, because of the intrinsic relation between group and individual identity.149 That approach makes translating the conflicting rights in analogous terms somewhat easier. The objection that group rights would strengthen the divisions of the population and make them more rigid can be related to the allegation that group rights are problematic because they would reduce the multifaceted identities of individual members of a group to one or a few aspects. That critique denies that there

18

Minority Protection in Post–Apartheid South Africa

can be several kinds of group rights, each of which potentially sheds light on different aspects of an individual’s identity, depending on the matter dealt with. Group rights would thus not necessarily amount to a denial of the ongoing changes in the personal identity or of the overlap between the distinctive identity features in one person. Still, it would be hard to deny that certain important issues regarding minority protection simply cannot be dealt with adequately by purely individual rights,150 because of the essential group dimension of the minority reality.151 The granting of certain forms of autonomy to a population group, the establishment or possible financing of minority schools, and the determination of language rights of the members of linguistic minorities in their communication with public authorities are all issues that are closely related to minorities’ chances of preserving and developing their own, separate identity. These matters cannot be treated and decided on a purely individual basis,152 as several factors going beyond the individual have to be taken into account to delineate these rights appropriately. Such delineation is strongly influenced by considerations of proportionality, which is also an important feature of the principle of substantive equality. Often the factors used to evaluate the proportionality principle, such as numerical strength and territorial concentration, require the larger group to be taken into account. Consequently, a stronger recognition of the group dimension of the minority phenomenon would be desirable to realize a full-blown minority protection, in the sense that the group aspect should be more explicitly referred to and taken into account when minority rights are elaborated.153 It can even be argued that certain group rights would be demanded by the principle of substantive equality. Issues Related to the Separate Identity of Minorities with Focus on the Right to Political Participation. Whereas I have discussed at some length elsewhere the concepts of language, culture, ethnicity, and religion as well as the importance of education,154 I will here merely give certain remarks in this regard and will focus on the right to political participation of minorities. Regarding language and language rights, typical demands of linguistic minorities155 concern the institutional foundations of cultural reproduction and more specifically the use of minority languages, communications with public authorities and in courts, in the public media and public education system, and in the names of persons, streets, and other topographical indications. In general, the determination of language rights for members of minorities can be compared to the search for a just equilibrium between national unity on the one hand and the accommodation of linguistic diversity on the other.156 Although the goal to have a lingua franca is in se legitimate, that process should not wipe out linguistic differences.157 In this respect, a sliding-scale approach is put forward, taking such relevant factors as size and territorial concentration into account.158 Similar arguments can be made in regard to inter alia religious, cultural, and educational rights for minorities. Issues that can be important for the preservation and development of religious groups are inter alia the extent to which the

Theoretical Framework

19

state financially contributes to the administration of the groups or to the building of churches and other places of worship, the regulation of religious instruction in the public education system, and the choice of religious holidays.159 Considering the fact that education is generally accepted to be of crucial importance to maintain a distinct identity,160 several aspects of education are relevant for minorities. The three issues that are arguably most relevant in this respect are mother-tongue education, the general content of the curriculum, and the right to establish and administer private educational institutions (conditions, limitations, and the question of financial state support). Several arguments can be put forward for mother-tongue education that concern the impact it would have on the emotional and cognitive development of students and thus on their future (professional) lives.161 This is at the same time related to the concern that the goal of substantive equality and equality of opportunity cannot be reached if not every person receives the same quality of education.162 The extent to which the public curriculum does not deny or exclude the minority cultures, religions, and languages is of course also important in view of both the right to identity and the right to substantive equality.163 Certain political rights for minorities and especially those that would imply a form of political representation and participation have considerable importance, as these are essential for the protection and promotion of all the other group interests,164 while being inclusive and not separating.165 In this regard, it can be argued that the distinctive minority identity, its protection and its promotion presuppose a certain form of political participation in decisions that have either a direct or an indirect impact on the minority’s own, separate identity. Every citizen’s right to take part in the conduct of public affairs is first protected as an individual human right and more specifically by article 21 (1) Universal Declaration on Human Rights and article 25(a) ICCPR. Both provisions are said to entrench “the right to popular participation in government, arguably implying more than simple majority rule through the electoral process.”166 According to Eide, a system of consociational democracy, through which each segment of the population would obtain a degree of autonomy and several forms of territorial decentralization—federalism, regional or local self-government— would be possible applications of a general right of political participation.167 More recent instruments on minority protection contain explicit provisions on the right of members of minorities to participate in several domains of public life, taking up and further refining the former individual human right to the situation of minorities. Article 2; sections 2 and 3 of the UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities; section 35 of the OSCE Copenhagen Document; and article 15 of the Framework Convention on the Protection of National Minorities should certainly be mentioned in this respect. The first official document with an important provision regarding the right to political participation of members of minorities is the 1990 Concluding Document of Copenhagen, which is a trendsetter in this matter. Nevertheless, paragraph 35 of the Copenhagen Document goes further than the corresponding

20

Minority Protection in Post–Apartheid South Africa

provision in the UN Declaration on Minorities, as the former does not restrict the right to take part in the conduct of public affairs to issues that are related to the protection and promotion of the distinctive minority identity. Article 15 of the Framework Convention is clearly (and even explicitly168) inspired by the corresponding provisions of the UN and the OSCE documents on minority protection. It should be emphasized that the right of participation in the conduct of public affairs as enshrined in the three minority instruments never goes as far as recognizing a form of administrative autonomy for minorities.169 Paragraph 35 of the Copenhagen Document arguably acknowledges a connection between the protection of the right to identity of minorities and a form of territorial autonomy, or at least a certain devolution of competencies to a lower level of government.170 The right to political participation of every citizen in a state can thus be interpreted widely so that it would have positive repercussions for minority protection. That right has furthermore a central position in the discussion of the interrelation between individual human rights, minority rights, and the right to self-determination for the elaboration of an adequate system of minority protection. The right to political participation of citizens is further tailored to the right to identity of minorities in the corresponding minority rights and also reflects in many ways the internal dimension of the right to self-determination.171 Conclusion The analysis of the current standards of minority rights reveals these standards to presuppose and take up the individual human rights of special relevance for minorities, tailoring them to their specific situation and needs. The minority rights standards also deal with issues like the provisions regarding language use in interaction with the authorities and language in education, that are not explicitly addressed in general individual human rights, because these matters are virtually automatically provided for the majority population of the state. Minority rights consequently interrelate with individual human rights and make additional contributions to minority protection. Nevertheless, throughout the analysis of the current standards, several deficiencies were revealed, the most striking of which is that the state obligations regarding minorities are too vague and accompanied by too many conditional limitations and escape clauses. It is also emphasized that the group dimension so essential for the minority reality is only grudgingly and very cautiously recognized and protected.172 Despite this rather negative evaluation of the contribution of the current minority rights to the right to identity of minorities, the importance and possible positive repercussions of an increasing recognition of a right for members of minorities to political participation should be acknowledged and underlined. This participation is undoubtedly most relevant regarding decisions of special significance to them. The way in which the individual human right regarding participation in the conduct of public affairs is taken up, further refined, and adapted as a minority right, while it appears to be pulled open to certain forms of internal

Theoretical Framework

21

self-determination, reveals that this right demonstrates and confirms the interrelation between individual human rights, minority rights, and the right to selfdetermination for an adequate minority protection. THE RIGHT TO SELF-DETERMINATION AND AN ADEQUATE SYSTEM OF MINORITY PROTECTION Two aspects of the right to self-determination require clarification to enable one to analyze and evaluate the possible impact of this right on minority protection. It concerns first the ambit of the subjects of this right to self-determination, which is related to the meaning of the concept “people,” and second, the various possible implementations of the right to self-determination and their content and implications. Whereas I covered the historical evolution of the right to self-determination more fully elsewhere,173 it suffices here to point to a few broad lines. Selfdetermination developed from a principle to a right through the decolonization process174 and it can even be argued that it amounts to a rule of jus cogens (Peremptory Noris of International Law) currently.175 Although there are still authors who are convinced that only colonial peoples have the right to selfdetermination,176 according to the dominant position the right would also be extended to non-colonial situations.177 In this respect one can rely on the references to peoples under foreign or racial domination and to “all peoples” without further qualifications in certain UN documents.178 Whether or not minorities are entitled to a right to self-determination is often discussed in light of UN Resolution 2625. That Resolution is usually discussed from two angles. First of all it contains an additional option of implementing the right to self-determination, namely “the emergence into any other political status freely determined by a people.” This open-ended option transcends quite resolutely the colonial sphere as well as the obsession with sovereign independence as outcome of the exercise of self-determination.179 Second, the penultimate paragraph of Resolution 2625’s section on equal rights and self-determination of peoples contains the famous statement on the representativity of government,180 which is always relied upon in discussions of the right to self-determination as related to minorities. This paragraph can be read to imply that the principle of territorial integrity and the concomitant restriction for the implementation of the right to self-determination is only valid for states with governments that represent the entire people living in the territory. There would thus arguably be a right to secession if that condition would not be fulfilled.181 However, the opinions about the more concrete content of the requirement of representative government are very divergent.182 As with the concept “minority,” the point of departure is that up until now there is no generally accepted, let alone firm legal, definition of “people.”183 There are more specifically very divergent opinions concerning the question whether or not and to what extent minorities could be considered peoples with a right to selfdetermination.184 Overall, there does seem to be a growing acceptance that minorities (should) benefit in some way and to some extent from a right to self-determination.185

22

Minority Protection in Post–Apartheid South Africa

An important distinction in this respect is between the external and the internal dimension of the right to self-determination. The right to self-determination in its external dimension concerns the international status of a people, which is related to a certain territory without being limited to secession. The internal dimension of this right, then, is characterized by its enormous diversity of possible implementations which all deal with intrastate regulations and structures and can be related to the accommodation of the various population groups living in a state.186 To accept this distinction and the further diversified content of the right to internal self-determination arguably opens more possibilities for minorities, in that the internal dimension would concern issues a lot less sensitive for states than potential secessions.187 Regarding the secession form of the right to self-determination in its external dimension, it can furthermore be stated that it is and remains a very controversial issue,188 mainly because the principle of territorial integrity of states is still so dominant in international law.189 All international and regional texts dealing with either the right to self-determination or with minority rights effectively underline this principle and its precedence.190 Those authors who recognize a limited right to secession impose not only all kinds of fundamental requirements, like severe forms of discrimination, but also certain practical conditions, like the territorial concentration of the group concerned or the possible viability of the new state.191 Consequently, insofar as secession is accepted, this is merely as ultimum remedium (last remedy), the concretization of which is dependent on the concrete circumstances. The rejection of a right to self-determination for population groups within a state is mainly caused by the idea that this would entail a right to secession for these groups, contradicting the principle of territorial integrity of states.192 However, a rejection along these lines cannot carry any weight with respect to the right to self-determination in its internal dimension for these groups, since that right does not affect the territorial integrity of existing states. The extensive range of possible implementations of the right to internal self-determination193 can furthermore be explained in terms of limitations to pure majority rule, and several of them can also be related to a right to political participation of members of minorities. A theoretical argumentation in favor of a right to internal self-determination for minorities relies on two key considerations of minority protection: the right to identity of minorities and the principle of substantive equality. A certain degree of autonomy for minorities can indeed be linked to the demands of the equality principle as such internal self-determination could be essential to put members of minorities on an equal footing with the rest of the population.194 It can also be argued that “the intrinsic idea of the right of self-determination is to provide every people with the possibility . . . to protect and develop its own identity.”195 An internal right to self-determination for minorities would undeniably improve the quality of minority protection since it concerns a group right that is closely linked to the right to identity of minorities and can take up and further improve the essence and achievements of minority rights.196

Theoretical Framework

23

There seems to be an intrinsic connection between minority rights and an internal right to self-determination for minorities in that they both contribute in an interrelated way to the right to identity of minorities (and to the demands of substantive equality), and thus to an adequate system of minority protection.197 It seems widely accepted that the right to self-determination is the necessary condition for the exercise of all individual human rights,198 while being considered a human right itself.199 To the extent that the right to self-determination is crucial for the realization and further protection of individual human rights,200 which are considered to be the conditio sine qua non for an adequate system of minority protection, it offers a further indication that both kinds of rights interrelate and are necessary for the elaboration of an adequate system of minority protection. The right to self-determination further contributes to minority protection because of its character as group right, in view of the essential group dimension of the minority reality. The close and even dialectical relation between the right to self-determination and the entire range of individual human rights appears to be generally accepted. That observation in combination with the evaluation of the importance for minority protection of both categories of rights in themselves, tends to confirm the interrelation between both types of rights for the elaboration of a system of minority protection that would be optimal for the realization of the right to identity of minorities. CONCLUSION: THE INTERRELATION BETWEEN INDIVIDUAL HUMAN RIGHTS, MINORITY RIGHTS, AND THE RIGHT TO SELF-DETERMINATION FOR AN ADEQUATE MINORITY PROTECTION On the basis of the foregoing analysis and argumentation, it can be concluded that individual human rights, minority rights, and a right to (internal) selfdetermination would be needed and would indeed interrelate for the elaboration of an adequate system of minority protection.201 These three categories of rights (to the extent that they concern minorities) each in themselves contribute to minority protection, while not being sufficient, in that an adequate system of minority protection would require a combination of all three. Every concrete system of minority protection will furthermore be different, depending on the specific circumstances of the situation. The correct, appropriate combination of rights needs to be attuned to the protection and promotion of the separate identity of the minority groups concerned, which will require different nuances for the various distinguishable minority situations. NOTES 1. L.C. Green, “Protection of Minorities in the League of Nations and the United Nations” in A. Gotlieb (ed.), Human Rights, Federalism and Minorities, Toronto, Canadian Institute of International Affairs, 1970, 181–182; H. Hannum, “Contemporary

24

2.

3. 4. 5.

6.

7.

8.

9. 10.

11.

12.

13.

14.

Minority Protection in Post–Apartheid South Africa

Developments in the International Protection of the Rights of Minorities,” Notre Dame Law Review 1991, 1431. F. Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, UN Doc.E/CN.4/Sub.2/384/Rev.1/1991, 25; P. Thornberry, International Law and the Rights of Minorities, Oxford, Clarendon Press, 1991, 40. Thornberry, International Rights of Minorities, 42–44. Thornberry, International Rights of Minorities, 51. Capotorti, Study on the Rights of Persons, 26–27; F. Ermacora, “The Protection of Minorities before the United Nations,” Receuil des Cours 1983, 264; Thornberry, International Rights of Minorities, 116. It is indeed noteworthy that although the protection of minorities does not feature in the UN Charter, it was included among the Commission’s main purposes. See also W. McKean, Equality and Discrimination under International Law, Oxford, Clarendon Press, 1985, 60–61. The Sub-Commission was renamed in 1999 so as to emphasize the focus on human rights more generally. It operates now as Sub-Commission for the Protection and Promotion of Human Rights. The list of resolutions nevertheless still reflects a special attention for minorities and indigenous peoples. F. Benoît-Rohmer, The Minority Question in Europe: Towards a Coherent System of Protection of National Minorities, Strasbourg, International Institute for Democracy, 1996, 16; A. Eide, Preliminary Report: Possible Ways and Means of Facilitating the Peaceful and Constructive Solution of Problems Involving Minorities, UN Doc. E/Cn.4/ Sub.2/1991/43, 24 June 1991, 11–12; McKean, Discrimination, 141–142. Advisory opinion regarding Minority Schools in Albania, 6 April 1935, PCIJ, PCIJ Reports, Series A/B No 64, 1935, 17. UN Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, Report on its First Session, UN Doc. E/CN.4/52, section V. See also Memorandum UN Secretary General, The Main Types and Causes of Discrimination, UN Sales No 49.XIV.3, New York, 1953, §§ 6–7. Inter alia J.P. Humphrey, “Preventing Discrimination and Positive Protection for Minorities: Aspects of International Law,” Les Cahiers de Droit 1986, (23) 24–25; J.L. Kunz, “The Present Status of the International Law for the Protection of Minorities,” A.J.I.L. 1954, 284; N.S. Rodley, “Conceptual Problems in the Protection of Minorities: International Legal Developments,” H.R.Q. 1995, (48) 50–51; Thornberry, International Rights of Minorities, 127. The book edited by Raïkka is constructed around the critical question, “Do we need minority rights?”: J. Raïkka (ed.), Do We Need Minority Rights? Conceptual Issues, The Hague, Martinus Nijhoff, 1996. See also C.C. O’Brien, “What Rights Should Minorities Have?” in B. Whitaker (ed.), Minorities, a Question of Human Rights? Oxford, Pergamon Press, 1984, 21, Rodley, “Conceptual Problems in the Protection of Minorities,” 64. Article 27 ICCPR: “In those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.” P. Thornberry, “The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities: Background, Analysis, Observations

Theoretical Framework

15. 16.

17.

18.

19.

20.

21.

22.

23.

24. 25.

25

and an Update” in A. Phillips & A. Rosas (eds.), Universal Minority Rights, Abo, Abo Akademi Tryckeri, 1995, 20. UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 1992, article 1. Thornberry, “UN Declaration on Minorities,” 41. See also A. Eide, Commentary to the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, document for the UN Working Group on Minorities, UN Doc. E/CN.4/Sub.2/AC5/1998/WP.1, 13 May 1998, 3. Badinter Arbitration Commission, Opinion No. 2, 20 November 1991, § 2 with reference to Opinion No. 1, § 1 in fine. See also P. Vandernoot, “Les Aspects Linguistiques du Droit des Minorités,” Revue Trimestrielle des Droits de l’Homme 1997, 341. A. Eide, Comprehensive Examination of the Thematic Issues Relating to Racism, Xenophobia, Minorities and Migrant Workers, Working Paper for the UN Working Group on Minorities, UN Doc. E/CN.4/Sub.2/1996/30, 25 July 1996, 5; Report Secretary General of the UN, Protection of Minorities. Possible Ways and Means of Facilitating the Peaceful and Constructive Solution of Problems Involving Minorities, 14 June 1995, UN Doc. E/CN.4/Sub.2/1995, 33, 3. Inter alia Capotorti, Study on the Rights of Persons, 5; W.S. Heinz, Indigenous Populations, Ethnic Minorities and Human Rights, Saarbrucken, Verlag Breitenbach, 1991, 4; I. Schulte-Tenckhoff & T. Ansbach, “Les Minorités en Droit International” in A. Fenet & A. Koubi (eds.), Le Droit et les Minorités, Brussels, Bruylant, 1995, 17. For an explicit enumeration of the so-called “essential components” of a definition of the word “minority,” see inter alia J. Deschênes, “Qu’est-ce qu’une Minorité?” Les Cahiers de Droit 1986, 289; M.N. Shaw, “The Definition of Minorities in International Law” in Y. Dinstein & M. Tabory (eds.), The Protection of Minorities and Human Rights, Dordrecht, Martinus Nijhoff, 1992, 23–28; Capotorti, Study on the Rights of Persons, 15; J. Packer, “On the Definition of Minorities” in J. Packer & K. Myntti (eds.), The Protection of Ethnic and Linguistic Minorities in Europe, Abo, Abo Akademi Tryckeri, 1993, 46, 48, 54–55. R. Zaagman, “The CSCE High Commissioner on National Minorities” in A. Bloed (ed.), The Helsinki Summit of the CSCE and Its Aftermath, Dordrecht, Martinus Nijhoff, 1994, 133. The Explanatory Report to the Framework Convention for the Protection of National Minorities states explicitly in its item 12 that there had been a conscious choice for a pragmatic approach, underlining and explaining the absence of any definition of the concept “national minority” in the Framework Convention. Several of the members of the UN Working Group on Minorities have expressed a preference for a pragmatic approach instead of elaborating a rigid legal definition of the concept “minority” as that would involve many risks (UN Working Group on Minorities, Report on Its Third Session, UN Doc. E/CN.R/Sub.2/1997/18, 10 July 1997, 22). See also Shaw, “The Definition of Minorities,” 25. Capotorti, Study on the Rights of Persons, 96. See also ibid. at 9, where he refers to the fact that all states who have submitted observations to him regarding this issue, accepted that article 27 ICCPR does apply to the members of ethnic, religious, or linguistic groups in multinational or plural societies. See also M. Nowak, The UN Covenant on Civil and Political Rights. Commentary on the CCPR, Kehl, NP Engel, 1993, 488.

26

Minority Protection in Post–Apartheid South Africa

26. Nowak, CCPR Commentary, 488. 27. See also Deschênes, “Qu’est-ce qu’une Minorité?” 269. 28. This restrictive attitude tends to predominate as normally the state is taken as the exclusive point of reference: Nowak, CCPR Commentary, 488; C. Tomuschat, “Protection of Minorities under Article 27 of the International Covenant on Civil and Political Rights” in R. Bernhardt et al. (eds.), Völkerrecht as Rechtsordnung, Internationale Gerichtsbarkeit Menserechte, Festschrift für Hermann Mosler, 1983, 958. 29. Human Rights Committee, Ballantyne, Davidson & Mc Intyre v Canada, Communication Nos 359/1989 and 385/1989, UN Doc. CCPR/C/4/47/dD/359/1989 and 385/ 1989/rev.1 (1993), 31 March 1993. 30. P.V. Ramaga, “Relativity of the Minority Concept,” H.R.Q. 1992, 109. See also J. Theunis, De Bescherming van Minderheden in het Internationaal en Nationaal Recht. Recente Ontwikkelingen, Ghent, Mys & Breesch, 1995, 29–30; T. Varady, “Minorities, Majorities, Law and Ethnicity: Reflections of the Yugoslav Case,” H.R.Q. 1997, 13–14.. 31. Capotorti, Study of the Rights of Persons, 12. See also Ramaga, “Relativity of the Minority Concept,” 104. 32. Capotorti, Study on the Rights of Persons, 12, 96. 33. Ibid. See also Thornberry, International Rights of Minorities, 9; Shaw, “Definition of Minorities,” 26. 34. Capotorti, Study on the Rights of Persons, 12; Deschênes, “Qu’est-ce qu’une minorité?,” 262–264; Thornberry, International Rights of Minorities, 171; Nowak, “The Evolution of Minority Rights in International Law” in C. Brolmann et al. (eds.), Peoples and Minorities in International Law, The Hague, Kluwer, 1993, 15. 35. Nowak, CCPR Commentary, 488–489; Shaw, “Definition of Minorities,” 26; Tomuschat, “Protection of Minorities under Article 27 ICCPR,” 960–962; R. Wolfrum, “The Emergence of New Minorities as a Result of Migration” in C. Brolmann et al. (eds.), Peoples and Minorities in International Law, The Hague, Kluwer, 1993, 160–163. 36. Theunis, De Bescherming van Minderheden, 28; Thornberry, “The UN Declaration on Minorities,” 28–30. 37. Inter alia G. Gilbert, “The Legal Protection Accorded to Minority Groups in Europe,” Netherlands Yearbook of International Law 1992, 72. 38. The General Comment dealing with article 27 ICCPR (General Comment No 23, UN Doc. HRI/GEN/1/Rev.1 at 38 (1994), § 5.2) and the one on the position of aliens under the Covenant (General Comment 15, UN Doc. HRI/GEN/1/Rev.1 at 18 (1994), § 7). See also Nowak, CCPR Commentary, 488–489. 39. General Comment No 23 on article 27 ICCPR, § 5.2. 40. Capotorti, Study on the Rights of Persons, 96. See also A. Spiliopoulou-Akermark, Justificiations of Minority Protection in International Law, London, Kluwer, 1997, 90; Shaw, “Definition of Minorities,” 28. 41. Ramaga, “Relativity of the Minority Concept,” 115. 42. Nowak, CCPR Commentary, 492; Tomuschat, “Protection of Minorities under Article 27,” 959–960; J. Pejic, “Minority Rights in International Law,” H.R.Q. 1997, 673. 43. M. Tabory, “Language Rights as Human Rights,” Israel Yearbook of Human Rights 1980, 182. 44. K. Henrard, Devising an Adequate System of Minority Protection: Individual Human Rights, Minority Rights and Self-Determination, The Hague, Kluwer, 2000, 69–146. 45. H. Hannum, Autonomy, Sovereignty and the Right to Self-Determination, Philadelphia, University of Pennsylvania Press, 1990, 110–114; C. Hillgruber & M. Jestaedt,

Theoretical Framework

46. 47.

48.

49. 50.

51.

52. 53. 54. 55. 56.

57.

58.

27

The European Convention on Human Rights and the Protection of National Minorities, Köln, Verlag Wissenschaft und Politik, 1994, 23–76. F. Benoît-Rohmer, The Minority Question in Europe: Towards a Coherent System of Protection for National Minorities, Strasbourg, Council of Europe, 1996, 46. Hannum, Sovereignty, 111, 460; Kymlicka, Multicultural Citizenship, 111; Thornberry, International Rights of Minorities, 287; C.H. Williams, “The Cultural Rights of Minorities: Recognition and Implementation” in J. Plichtova (ed.), Minorities in Politics: Cultural and Language Rights, Bratislava, Czechoslovac Committee of the European Cultural Foundation, 1992, 114. Inter alia Y. Dinstein, “Cultural Rights,” Israel Yearbook of Human Rights 1970, 68; R. Jeffcoate, Ethnic Minorities and Education, London, Harper & Row, 1987, 138; T.S. Orlin, “Religious Pluralism and Freedom of Religion: Its Protection in Light of State/Church Relationships” in A. Rosas & J. Helgesen (eds.), The Strength of Diversity: Human Rights and Pluralist Democracy, Dordrecht, Martinus Nijhoff, 1992, 108; V. Van Dyke, “The Cultural Rights of Peoples,” Universal Human Rights 1980, 13; P. Zec, “Multicultural Education: What Kind of Relativism Is Possible”? Journal of Philosophy of Education 1980, 79. See also C. Hillgruber & M. Jestaedt, Protection of Minorities and the ECHR, 53; Williams, “Cultural Rights of Minorities,” 109. With the entry into force of additional protocol 11 to the European Convention on Human Rights on 1 November 1998, the supervisory system of the Convention is drastically changed as it entails the establishment of a new, single European Court of Human Rights (X, Human Rights Bulletin No 43, H/INF [98] 4, Strasbourg, Council of Europe, September 1998, 36). The European Commission of Human Rights will continue to function for one more year but will then be phased out (P. Van Dijk & G.J.H. Van Hoof, Theory and Practice of the European Convention on Human Rights, The Hague, Kluwer, 1998, ix). It is nevertheless still important to include discussions of the case law as developed by the Commission, since it represents part of the acquis of the Convention and because the new Court “may be expected to be guided by the Commission’s . . . case-law” (ibid.). D.J. Harris et al., Law of the European Convention on Human Rights, London, Butterworths, 1995, 487; McKean, Discrimination, 208; J. Vélu & R. Ergec, La Convention Européenne des Droits de l’Homme, Brussels, Bruylant, 1990, 128. K. Henrard, Devising an Adequate System of Minority Protection, 56–145. Hannum, Sovereignty, 110–114; Thornberry, International Rights of Minorities, 133. Inter alia A. Fenet, “Europe et les Minorités,” 97, 102. Gilbert, “Legal Protection of Minority Groups in Europe,” 90. See in this respect the cases against Turkey since the mid 1990s, turning on the Kurdish issue and their treatment in that state. The Court has undeniably chosen to underscore and effectively protect the rights enshrined in the articles 2, 3, 5, 10 and 11 for members of minorities. G. Cohen-Jonathan, La Convention Européenne des Droits de l’Homme, Aix-enProvence, Presses Universitaires d’Aix-Marseille, 1989, 538–539; Harris et al., Law of the ECHR, 463, 465; Van Dijk & Van Hoof, Theory and Practice of the ECHR, 850; Vélu & Ergec, La Convention Européenne, 112–115. The supervisory bodies of the ECHR give the impression not to investigate thoroughly enough whether a certain measure could indirectly have discriminatory effects. They tend to neglect to take the broader position of the people concerned into

28

59. 60.

61.

62.

63. 64.

65. 66.

67.

68.

69.

70.

Minority Protection in Post–Apartheid South Africa

account when assessing the alledged discriminatory treatment: O. De Schutter, “Observations. Le Droit au Mode de Vie Tsigane devant la Cour Européenne des Droits de l’Homme,” Revue Trimestrielle de Droits de l’Homme 1997, 79–85; Harris et al., Law of the ECHR, 477–478. De Schutter, “Droit au Mode de Vie Tsigane,” 89–90; Harris et al., Law of the ECHR, 476, 483; Van Dijk & Van Hoof, Theory and Practice of the ECHR, 726–727. Harris et al., Law of the ECHR, 477; T. Loenen, “The Equality Clause in the South African Constitution: Some Remarks from a Comparative Perspective,” South African Journal of Human Rights 1997, 419. See also M. Bossuyt, “Article 14” in L.E. Pettiti et al. (eds.), La Convention Européenne des Droits de l’Homme: Commentaire Article par Article, Paris, Economica, 1995, 486. See also M. Melchior, “Le Principe de Non-discrimination dans la Convention Européenne des Droits de l’Homme” in A. Alen & P. Lemmens (eds.), Gelijkheid en Non-discriminatie, Antwerp, Kluwer, 1991, 23. See also Comité Directeur pour les Droits de l’Homme, 43ième réunion—October 1997, feddh 97, Strasbourg, Council of Europe, 28 October 1997, 8–9. The ECHR does not enshrine significant language rights. They are limited to procedural and police related matters, whereas there are no provisions dealing with the use of language between individuals and the public authorities, language in education and the like. Other specific concerns of minorities related to religion (religious holidays) and culture (media access and coverage) are simply not addressed either. Cf. the remark regarding indirect discrimination, above. See specifically European Commission on Human Rights, Association A. and H. v Austria, Application No 9905/82, 15 March 1984, D.R. 36, 187–193; European Court of Human Rights, Belgian Linguistics Case, 23 July 1963, Series A no 6, 44; European Court of Human Rights, Mathieu-Mohin & Clerfayet v Belgium, Series A no 113, § 57. See inter alia European Court on Human Rights, Tekin v Turkey, 9 June 1998, [www.dhcour.coe.fr]; Kaya v Turkey, 19 February 1998, [www.dhcour.coe.fr]; Mentes and Others v Turkey, 28 November 1997, [www.dhcour.coe.fr]; Aksoy v Turkey, 18 December 1996, [www.dhcour.coe.fr]. See also the two cases mentioned in the following note. Regarding the right to association, this is expressly stated by the European Court on Human Rights in United Communist Party of Turkey and Others v Turkey, 10 July 1998, [www.dhcour.coe.fr], §§ 56–57; Socialist Party and Others v Turkey, 25 May 1998, [www.dhcour.coe.fr], § 47. See also European Court on Human Rights, Sidiropoulos and 5 Others v Greece, 10 July 1998, [www.dhcour. coe.fr], §41. The ECHR only contains individual rights, no collective or group rights. Regarding the freedom of association of article 11, the question has been raised whether minorities as such could be considered “associations,” opening up the spectre of group rights for minorities, which is a controversial issue. The Commission was reluctant to allow for the idea of group rights for minorities via article 11 (See also Gilbert, “Legal Protection of Minority Groups in Europe,” 88; Harris et al., Law of the ECHR, 423). See European Court on Human Rights, Belgian Linguistics Case, §3. See also F. De Varennes, Language, Minorities and Human Rights, London, Kluwer, 1997, 73; P. M. Dupuy, “Premier Protocol Additionel. Article 2” in L.E. Pettiti et al. (eds.),

Theoretical Framework

71.

72.

73.

74.

75.

76.

77.

78.

29

La Convention Européenne des Droits de l’Homme: Commentaire Article par Article, Paris, Economica, 1995, 1008; Hillgruber & Jestaedt, Protection of Minorities and the ECHR, 25. The Court uses a very high threshold regarding the obligation of states to respect the rights of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions in the exercise of any functions which it assumes in relation to education and teaching; namely only in case of a state attempt of indoctrination of pupils article 2 of the first additional protocol would be violated. See inter alia European Court on Human Rights, Kjeldsen, Busk Madsen & Perdersen v Denmark, 7 December 1976, Series A no 23, §53; European Court on Human Rights, Efstratiou v France, 18 December 1996, [www.dhcour.coe.fr], §32. The critical remarks of Judges Thor Vilhjalmsson and Jambrek are in point in their dissenting opinion: ibid., 16–17. See inter alia European Court on Human Rights, Belgian Linguistics Case, § 3; European Commission on Human Rights, X and Y v UK, Application No 9461/81, 7 December 1982, D.R. 31, 211; European Commission on Human Rights, Forty Mothers v Sweden, Application No 6853/74, 9 March 1977, D.R. 9, 27. Cf. the Commission regarding the indigenous population in Surinam, X v Netherlands, Application No 7230/75, 4 October 1976, D.R. 7, 111. See also the decision regarding the treaty between Germany and Czechoslovakia which recognized Czechoslovakia’s sovereignty over Sudetenland without preceding referendum for the population affected: European Commission on Human Rights, X v FRG, Application No 6742/74, 10 July 1975, D. R. 3, 100. See also Hillgruber & Jestaedt, Protection of Minorities and ECHR, 57–58. The Commission postulated in the Lindsay case that a difference in the election system within one state which is meant to protect the rights of minorities would amount to a reasonable and objectively justified differential treatment disfavouring the majority (Lindsay and Others v UK, Application No 9364/78, 8 March 1979, D.R. 15, 251). The Commission even found in Moureaux v Belgium that special attention should be given to the representation of the minority when people tend to choose along ethnic or religious lines (Moureaux v Belgium, Application No 9267/81, 12 July 1983, D.R. 33, 114). Gilbert describes article 27 ICCPR as “the starting point for any examination of the protection of . . . minorities in international law post-1945” (G. Gilbert, “Religious Minorities and Their Rights,” 117). F. Capotorti, “Les Développements Possibles de la Protection Internationale des Minorités,” Cahiers de Droit 1986, 241; Tomuschat, “Protection of Minorities under Article 27,” 952; Thornberry, International Rights of Minorities, 117. Hannum, Sovereignty, 59; H. Hannum, “Contemporary Developments in the International Protection of the Rights of Minorities,” Notre Dame Law Review 1991, 1436; L. B. Sohn, “The Rights of Minorities” in L. Henkin (ed.), The International Bill of Rights, New York, Columbia University Press, 1981, 276. Human Rights Committee, Kitok v Sweden, Communication No 197/1985, UN Doc. CCPR/C/33/D/197/1985, § 9.2. See also M. Adams, “Enkele Aspecten van het Recht op Beleving van een Eigen Minderheidscultuur: Artikel 27 IVBPR en de CVSE” in J. Velaers (ed.), Recht en Verdraagzaamheid in de Multiculturele Samenleving, Antwerp, Maklu, 1993, 156; Thornberry, International Rights of Minorities, 212.

30

Minority Protection in Post–Apartheid South Africa

79. Thornberry, International Rights of Minorities, 185; R. Stavenhagen, “Human Rights and Peoples’ Rights—The Question of Minorities,” Nordic Journal on Human Rights 1987, 20. 80. Inter alia R.L. Barsch, “Minorities: The Struggle for a Universal Approach” in G. Alfredsson & P. Macalister-Smith (eds.), The Living Law of Nations: Essays on Refugees, Minorities and Indigenous Peoples and the Human Rights of Other Vulnerable Groups—In Memory of Atle Grahl-Madsen, Kehl, NP Engel, 1996, 150. 81. Y. Dinstein, “The Degree of Self Rule of Minorities in Unitarian and Federal States” in C. Brolmann (ed.), Peoples and Minorities in International Law, Dordrecht, Nijhoff, 1993, 228; Nowak, CCPR Commentary, 502; Thornberry, “The UN Declaration,” 19. 82. Barsch, “Minorities: The Struggle for a Universal Approach,” 151; F. Capotorti, “The Protection of Minorities under Multinational Agreements on Human Rights,” Italian Yearbook of Human Rights 1976, 25; De Varennes, Language, Minorities and Human Rights, 149; Dinstein, “Cultural Rights,” 68. 83. Nowak, “The Evolution of Minority Rights in International Law,” 109. 84. Capotorti, Study on the Rights of Persons, 36; L. Mulder, Minderheden als Nieuwe Bevolkingsgroepen. De Verwezenlijking van Gelijkheid en Verscheidenheid, Nijmegen, Ars Aequi Libri, 183; Packer, “On the Content of Minority Rights,” 155. 85. A. Bredimas, “Les Mesures Spéciales en Faveur des Minorités” in L.A. Sicilianos (ed.), Nouvelles Formes de Discrimination—New Forms of Discrimination, Paris, A. Pedone, 1995, 289. 86. Human Rights Committee, General Comment on Article 27 ICCPR, § 6.2. 87. See inter alia Capotorti, “The Protection of Minorities under Multinational Agreements on Human Rights,” 18–19; Pejic, “Minority Rights in International Law,” 674; Tomuschat, “Protection of Minorities under Article 27,” 966; P. Thornberry, “Images of Autonomy and Individual and Collective Rights in International Instruments on the Rights of Minorities” in M. Suksi (ed.), Autonomy: Applications and Implications, The Hague, Kluwer, 1998, 106; Thornberry, “The UN Declaration,” 21. 88. N.S. Rodley, “Conceptual Problems in the Protection of Minorities: International Legal Developments,” H.R.Q. 1995, 49; Sohn, “Rights of Minorities,” 274. 89. Adams, “Aspecten van het Recht op Beleving,” 157; Barsch, “Minorities: The Struggle for a Universal Approach,” 150; Thornberry, “The UN Declaration,” 37. 90. Benoît-Rohmer, Minority Question in Europe, 23; J. Symonides, “The Legal Nature of Commitments Related to the Question of Minorities” in L.A. Sicilianos (ed.), Nouvelles Formes de Discrimination—New Forms of Discrimination, Paris, A. Pedone, 1995, 200; S. Karagiannis, “La Protection des Langues Minoritaires au Titre de l’Article 27 du Pacte International relatif aux Droits Civils et Politiques,” Revue Trimestrielle des Droits de l’Homme 1994, 218. 91. See also Thornberry, “The UN Declaration,” 41. 92. Respectively articles 2, §§ 2 and 3; 2, § 5; 4, §§ 3 and 4 of the UN Declaration on Minorities. 93. Under article 1 states are obliged to adopt appropriate legislative and other measures to protect the identity of minorities within their territory as well as to encourage the conditions for the promotion of that identity, the importance of which cannot be overestimated (J. Duffar, “La Protection Internationale des Droits de Minorités Linguistiques,” 1507; Packer, “On the Content of Minority Rights,” 157). 94. Benoît-Rohmer, The Minority Question in Europe, 23.

Theoretical Framework

31

95. However, it should be kept in mind that article 1 mainly functions as a programmatic provision, giving a broad sense of direction, without indicating concrete requirements (F. De Varennes, To Speak or Not to Speak, The Rights of Persons Belonging to Linguistic Minorities—Working Paper for the UN Working Group on Minorities, UN Doc. E/CN.4/Sub.2/AC.5/WP.6, 1997, 18 April 1997, 4). 96. See also F. De Varennes, Towards Effective Political Participation and Representation of Minorities—Working Paper for the UN Working Group on Minorities, UN Doc. E/CN.4/Sub.2/AC.5/1998, WP.5, May 1998, 4–5. 97. Two other international instruments of intergovernmental nature that are relevant are the UNESCO Declaration on Race and Racial Prejudice and the UN Declaration on the Elimination of All Forms of Intolerance and Discrimination based on Religion or Belief. Finally, the 1976 Universal Declaration on the Rights of Peoples should be referred to. Although this document has a nongovernmental origin, it has a certain de facto authority. For a discussion of these instruments and a more extensive analysis of the other instruments enumerated here, see K. Henrard, Devising an Adequate System of Minority Protection, 193–205. 98. The focus of the European instruments will be on the Council of Europe and the OSCE. The EU mainly confines its actions regarding minority protection to the external level, whereas minority protection at the level of the EU itself is not extensively developed. This arguably reflects a lack of general policy choice in this regard. 99. Capotorti, “The Protection of Minorities under Multinational Agreements on Human Rights,” 10; Ermacora, “The Protection of Minorities before the United Nations,” Receuil des Cours 1983, 313. 100. A. Michalska, “Rights of Peoples and Human Rights in International Law” in B.G. Kutukdjian & A. Papisca (eds.), Rights of Peoples, Padova, Cedam, 1991, 56; J. B. Attanasio, “The Rights of Ethnic Minorities: The Emerging Mosaic,” Notre Dame Law Review 1991, 1200. 101. H. Hannum, “Contemporary Developments in the International Protection of the Rights of Persons Belonging to Minorities,” Notre Dame Law Review 1991, 1437; Michalska, “Rights of Peoples and Human Rights in International Law,” 52–53. 102. A.M. De Zayas, “The International Protection of Peoples and Minorities” in C. Brolmann (ed.), Peoples and Minorities in International Law, Dordrecht, Nijhoff, 1993, 270; Hannum, Sovereignty, 69; J. A. Sigler, Minority Rights: A Comparative Analysis, Westport, Greenwood Press, 1983, 80. 103. Compare articles 1, § 4 and 2, § 2 of the International Convention on the Elimination of all forms of Racial Discrimination. Brédimas qualifies this convention as the most important instrument regarding affirmative action in favour of minorities (A. Brédimas, “Les Mesures Spéciales en Faveur des Minorités” in L.A. Sicilianos (ed.), Nouvelles Formes de Discrimination—New Forms of Discrimination, Paris, A. Pedone, 1995, 287). 104. Article 5 contains an enumeration of certain fundamental rights and freedoms or individual human rights which should be guaranteed without distinction based on race, colour, national or ethnic origin. It concerns inter alia freedom of religion and of expression, right to education, and an equal participation in cultural activities. Article 5 refers furthermore back to the obligations of article 2, thus including the obligation of contracting states to take special measures for certain groups in certain circumstances.

32

Minority Protection in Post–Apartheid South Africa

105. G. Koubi, “Droit, Droit à la différence, Droit à l’indifférence en France,” Revue Trimestrielle des Droits de l’Homme 1993, 260. 106. It should be emphasized that this is indeed “the first international convention adopted after 1945 which contains provisions expressis verbis relating to the rights of persons belonging to minorities” (J. Symonides, “The Legal Nature of Commitments Related to the Question of Minorities” in R. Lefeber (ed.), The Changing Political Structure of Europe, Dodrecht, Martinus Nijhoff, 1991, 201). 107. See inter alia Hannum, “Contemporary Developments in the International Protection of the Rights of Minorities,” 1441; Thornberry, International Rights of Minorities, 287. 108. Thornberry, International Rights of Minorities, 289. 109. Capotorti, “The Protection of Minorities under Multinational Agreements on Human Rights,” 8–9. See also Thornberry, International Rights of Minorities, 290. 110. A more extensive discussion can be found at K. Henrard, Devising an Adequate System of Minority Protection, 205–216. 111. The OSCE also established the office of the High Commissioner on National Minorities, more specifically at the 1992 OSCE follow-up meeting in Helsinki. The HCNM has a twofold mission, namely to contain and de-escalate tensions involving national minority issues and to act as tripwire (Helsinki Document II, CSCS High Commissioner on National Minorities, 1992, 3). His practice might very well lead to some further standard setting regarding minority rights and minority protection at the level of the OSCE. 112. Inter alia Benoît-Rohmer, The Minority Question in Europe, 25; Hannum, “Contemporary Developments in the International Protection of the Rights of Minorities,” 1439–1440; M. Tabory, “Minority Rights in the CSCE Context” in Y. Dinstein & M. Tabory (eds.), The Protection of Minorities and Human Rights, Dordrecht, Martinus Nijhoff, 1992, 192. See also A. Heraclides, “The Human Dimension’s Swansong in Helsinki II: The Normative Aspect with Emphasis on National Minorities” in A. Bloed (ed.), The Challenge of Change: The Helsinki Summit of the CSCE and Its Aftermath, Dordrecht, Martinus Nijhoff, 1994, 287. 113. Adams, “Enkele Aspecten van het Recht op Beleving,” 162. Cf. Benoît-Rohmer, The Minority Question in Europe, 25; H. Hannum, “Contemporary Developments in International Protection of the Rights of Minorities,” Notre Dame Law Review 1991, 1440. 114. Inter alia H. Hardeman & F. Benoît-Rohmer, The Minority Question in Europe: Towards the Creation of a Coherent European Regime, Brussels, Centre for European Policy Studies, 1994, 6; Pejic, “Minority Rights in International Law,” 680. 115. R. Dalton, “The Role of the CSCE” in H. Miall (ed.), Minority Rights in Europe: The Scope for a Transnational Regime, London, Printer, 1994,100; J. Helgesen, “Protecting Minorities in the CSCE Process” in A. Rosas & J. Helgesen (eds.), The Strength of Diversity: Human Rights and Pluralist Democracy, Dordrecht, Martinus Nijhoff, 1992, 168; Tabory, “Minority Rights in the CSCE Context,” 199. 116. Hannum, “Contemporary Developments in Minority Protection,” 1442; Williams, “Cultural Rights of Minorities,” 109. 117. Gilbert, “The Legal Protection Accorded to Minority Groups in Europe,” 95. See also Adams, “Aspecten van het Recht op Beleving van een Eigen Minderheidscultuur,” 164; Hannum, “Contemporary Developments in Minority Protection,” 1443.

Theoretical Framework

33

118. E.A. Daes, “The Question of Minorities within the Framework of the Conference on Security and Co-operation in Europe” in G. Alfredsson & P. Macaliser-Smith (eds.), The Living Law of Nations: Essays on Refugees, Minorities, Indigenous Peoples and the Human Rights of other Vulnerable Groups, Kehl, NP Engel, 1996, 245; Packer, “On the Content of Minority Rights,” 164. 119. It should be noted that in 1992 the OSCE established the High Commissioner on National Minorities with the following twofold mandate: to try to contain and deescalate tensions involving national minority issues, and to act as “tripwire.” His practice might lead to some further standard development or even standard setting regarding minority rights and minority protection at the level of the OSCE. 120. This option allows the Charter to transcend the sensitive group rights debate (P. Blair, The Protection of Regional or Minority Languages in Europe, Fribourg, Institut du Fédéralisme, 1994, 56). The definitions of article 1 clarify that the field of application of the Charter is limited to indigenous languages and thus excludes the languages of immigrants. Blair remarks in this regard that “the decision to exclude such languages is clearly open to objection, especially as in some Western European Countries . . . they are normally perceived as the greater problem” (Blair, The Protection of Regional or Minority Languages, 57). 121. For a strong criticism as regards this flexible approach of the European Charter in that it leaves so much choice to the states, see F. De Varennes, “Ethnic Conflicts and Language in Eastern European and Central Asian States: Can Human Rights Help Prevent Them?” International Journal on Group and Minority Rights 1997, 156. 122. F. Benoît-Rohmer, “Le Conseil de l’Europe et les Minorités Nationales” in K. Malfliet & R. Laenen (eds.), Minority Rights in Central and Eastern Europe: The Link between Domestic Policy, Foreign Policy and European Integration, Louvain, KUL, 1998, 146. 123. Blair, Protection of Regional or Minority Languages, 58. 124. K. Schumann, “The Role of the Council of Europe” in H. Miall (ed.), Minority Rights in Europe: The Scope for a Transnational Regime, London, Pinter, 1994, 93. Cf. Benoît-Rohmer, The Minority Question in Europe, 51; Blair, Protection of Regional or Minority Languages, 65. 125. Benoît-Rohmer, “Le Conseil de l’Europe et les Minorités Nationales,” 145. For an in-depth discussion of the Framework Convention, see H. Klebes, “The Council of Europe’s Framework Convention for the Protection of National Minorities— Introduction,” Human Rights Law Journal 1995, 92–98. 126. Inter alia Benoît-Rohmer, The Minority Question in Europe, 40. 127. Benoît-Rohmer, The Minority Question in Europe, 42; Klebes, “The Council of Europe’s Framework Convention,” 93–94. 128. Framework Convention, articles 7, 8, 9, and 12, § 3. 129. Inter alia Framework Convention, article 9, §§ 2, 3 and 4. 130. Klebes, “The Council of Europe’s Framework Convention,” 95; Benoît-Rohmer, “Le Conseil de l’Europe et les Minorités Nationales,” 139. 131. A. Fenet, “Europe et les Minorités” in A. Fenet et al. (eds.), Le Droit et les Minorités: Analyses et Textes, Brussels, Bruylant, 1995, 180. See also Benoît-Rohmer, The Minority Question in Europe, 48–49. 132. Explanatory Memorandum to the Framework Convention on the Protection of National Minorities, Human Rights Law Journal 1995, 102 (§ 13). 133. Spiliopoulou-Akermark, Justifications of Minority Protection, 238.

34

Minority Protection in Post–Apartheid South Africa

134. Inter alia Hannum, Sovereignty, 71; Sohn, “The Rights of Minorities,” 270; Thornberry, “The UN Declaration,” 18. 135. See also G. Alfredsson, Report on Equality and Non-Discrimination: Minority Rights, Strasbourg, Council of Europe, 1990, H/Coll (90) 6, 20. 136. R.L. Barsch, “Minorities: The Struggle for a Universal Approach” in G. Alfredsson & G. Macalister-Smith (eds), The Living Law of Nations: Essays on Refugees, Minorities, Indigenous Peoples and the Human Rights of other Vulernable Groups, Kehl, NP Engel, 1996, 146. 137. It should be underlined, however, that a 1994 Report of the European Commission for Democracy through Law (Collected Texts no 9) that most states of the Council of Europe grant special rights to minority groups with regard to language, education, religion, culture, and representation in political institutions. There is arguably a tendency discernable on the part of states to acknowledge that mere non-discrimination and formal equality is not sufficient for an adequate minority protection. 138. T. Storimans, Het Recht op Anderszijn in het Bijzonder met Betrekking to Minderheden in het Basisonderwijs, Nijmegen, Ars Aequi Libri, 1993, 57. 139. G. Alfredsson, Discussion Paper of Workshop I at Strasbourg Conference on Parliamentary Democracy: Human Rights, Fundamental Freedoms and the Rights of Minorities, Strasbourg, Council of Europe, SXB. Conf (III) 8, 12. 140. PCIJ, Advisory Opinion regarding Minority Schools in Albania, 6 April 1935, PCIJ Reports, Series A/ B No 54, 1935, 17. 141. Storimans, Recht op Anderszijn, 57. See also D. Turk, “Le Droit des Minorités en Europe” in H. Giordan (ed.), Les Droits des Minorités: Droits Linguistiques et Droits de l’Homme, Paris, Kime, 1992, 456; P. Leuprecht, “Le Conseil de l’Europe et les Droits des Minorités,” Cahiers de Droit 1986, 211. 142. J. Duffar, “La Protection Internationale des Droits des Minorités Religieuses,” Revue de Droit Public et de Science Politique en France et à l’étranger 1995, 1525. 143. W. Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights, Oxford, Clarendon Press, 1995, 31–33. 144. Inter alia Hardeman & Benoît-Rohmer, The Minority Question in Europe, 33–34. See also T. Varady, “Minorities, Majorities, Law and Ethnicity: Reflections on the Yugoslav case,” H.R.Q. 1997, 29; M. Hartney, “Some Confusions Concerning Collective Rights” in W. Kymlicka (ed.), The Rights of Minority Cultures, Oxford, Clarendon Press, 1995, 297. 145. Hartney, “Some Confusions Concerning Collective Rights,” 297. 146. Spiliopoulou-Akermark, Justifications of Minority Protection, 44–45. See also N. S. Rodley, “Conceptual Problems in the Protection of Minorities: International Legal Developments,” H.R.Q. 1995, 65–66. 147. Spiliopoulou-Akermark, Justifications of Minority Protection, 44–45. 148. J. Donnelly, “Third Generation Rights” in C. Brollmann et al. (eds.), Peoples and Minorities in International Law, Dordrecht, Martinus Nijhoff, 1993, 51; B.G. Ramcharan, “Individual, Collective and Group Rights: History, Theory, Practice and Contemporary Evolution,” International Journal on Group and Minority Rights 1993, 27. 149. M. Mc Donald, “Should Communities Have Rights? Reflections on Liberal Individualism,” Canadian Journal of Law and Jurisprudence 1991, 219; J. Pestiau, “Minority Rights: Caught between Individual Rights and Peoples’ Rights,” Canadian Journal of Law and Jurisprudence 1991, 371.

Theoretical Framework

35

150. Hannum, Sovereignty, 474–475. 151. See inter alia A. Eide, Commentary to the Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities—Document for the UN Working Group on Minorities, UN Doc. E/CN.4/Sub.2/AC.5/1998/WP.1, 13 May 1998, 6. 152. Cf. Varady, “Minorities, Majorities, Law and Ethnicity: Reflections of the Yugoslav Case,” 39–40. 153. See also Pejic, “Minority Rights in International Law,” 674. 154. K. Henrard, Devising an Adequate System of Minority Protection, 244–266. 155. Compare with the issues dealt with in the Oslo Recommendations Regarding the Linguistic Rights of National Minorities, made by a group of internationally recognized experts commissioned by the Foundation on Inter-Ethnic Relations (X, The Oslo Recommendations Regarding the Linguistic Rights of National Minorities and Explanatory Note, The Hague, Foundation on Inter-Ethnic Relations, 1998). See also Williams, “The Cultural Rights of Minorities: Recognition and Implementation,” 112; Tabory, “Language Rights as Human Rights,” 212–213. 156. F. De Varennes, Language, Minorities and Human Rights, The Hague, Kluwer, 1996, 86. 157. Ibid., 87. 158. Ibid., 91–95, 169. See also Blair, The Protection of Regional or Minority Languages in Europe, 11. 159. See also T.S. Orlin, “Religious Pluralism and Freedom of Religion: Its Protection in light of Church/State Relationships,” 105; V. Van Dyke, Human Rights, Ethnicity and Discrimination, Westport, Greenwood Press, 1985, 69; Y. Dinstein, “Freedom of Religion and the Protection of Religious Minorities” in Y. Dinstein & M. Tabory (eds.), The Protection of Minorities and Human Rights, Dordrecht, Martinus Nijhoff, 1992, 160. 160. Capotorti, Study on the Rights of Persons, 60; Dinstein, “Cultural Rights,” 68; Hillgruber & Jestaedt, The ECHR and National Minorities, 92; Tabory, “Language Rights as Human Rights,” 185. Cf. X, “The Hague Recommendations regarding the Education Rights of National Minorities and Explanatory Note,” International Journal on Group and Minority Rights 1997, 200. 161. Inter alia T. Skutnabb-Kangas, Bilingualism or Not: The Education of Minorities, Clevedon, Multilingual Matters, 1981, 118–119. 162. De Varennes, Language, Minorities and Human Rights, 121, 185. See also G. Szepe, “Some Remarks on the Education Rights of National Minorities in Central and Eastern Europe,” International Journal on Group and Minority Rights 1997, 107. 163. Regarding the more general issue of the content and tendency of the curriculum in globo (over all), the discussion regarding anti-racial versus multicultural education and their respective contributions to an improved accommodation of the population diversity within state borders is undoubtedly relevant. See inter alia G. Short, “Retain, Relinquish or Revise: The Future for Multicultural Education,” Journal for Multilingual and Multicultural Development 1994, 329–344. 164. T.R. Gurr, Minorities: A Global View of Ethnopolitical Conflicts, Washington D.C., U.S. Institute of Peace Press, 1993, 75. 165. See also P. Thornberry, “Images of Autonomy and Individual and Collective Rights in International Instruments on the Rights of Minorities” in M. Suksi (ed.), Autonomy: Applications and Implications, The Hague, Kluwer, 1998, 110.

36

Minority Protection in Post–Apartheid South Africa

166. H. Hannum, “The Limits of Sovereignty and Majority Rule: Minorities, Indigenous Peoples and the Right to Autonomy” in E. Lutz et al. (eds.), New Directions of Human Rights, Philadelphia, University of Pennsylvania Press, 1989, 18. 167. A. Eide, “Approaches to Minority Protection” in A. Phillips & A. Rosas (eds.), The UN Minority Declaration, Turku, Abo Akademis Tryckeri, 1993, 89. 168. Framework Convention, preamble, § 11. 169. Benoît-Rohmer, The Minority Question in Europe, 18. 170. H.J. Heintze, “On the Legal Understanding of Autonomy” in M. Suksi (ed.), Autonomy: Applications and Implications, The Hague, Kluwer, 1998 14; Thornberry, “Images of Autonomy,” 110. 171. Hannum, Sovereignty, 473–474. 172. Pejic, “Minority Rights in International Law,” 674. 173. For a discussion of the historical evolution of the right to self-determination and the most important UN documents regarding this rights, see Henrard, Devising an Adequate System of Minority Protection, 283–290. 174. H. Hannum, “Rethinking Self-Determination,” Virginia Journal of International Law 1993–1994, 973; H. Quane, “The United Nations and the Evolving Right to Self-determination,” I.C.L.Q. 1998, 554, 558; 175. Inter alia I. Brownlie, Principles of Public International Law, Oxford, Clarendon Press, 1991, 513, A. Cassese, International Law in a Divided World, Oxford, Clarendon Press, 1986, 136; C. Tomuschat, “Rights of Peoples, Human Rights and their Relationship within the Context of Western Europe” in G.B. Kutukdjian and A. Papisca (eds.), Rights of Peoples, Padova, Cedam, 1991, 62. 176. See the discussion in H. Hannum, “The Limits of Sovereignty and Majority Rule: Minorities, Indigenous Peoples and the Right to Autonomy” in E. Lutz et al. (eds.), New Directions in Human Rights, Philadelphia, University of Pennsylvania Press, 1989, 11 and J. Salmon, “Internal Aspects of the Right to Self-Determination: Towards a Democratic Legitimacy Principle?” in C. Tomuschat (ed.), Modern Law of Self-determination, Dordrecht, Martinus Nijhoff, 1993, 256. 177. Inter alia T.D. Musgrave, Self-Determination and National Minorities, Oxford, Clarendon Press, 1997, 90. 178. Cf. UN Resolution 2625, General Assembly, 26 February 1970; common article 1 of the ICCPR and the ICESCR. See also C. Tomuschat, “Self-Determination in a post-colonial World” in C. Tomuschat (ed.), Modern Law of Self-Determination, Dordrecht, Martinus Nijhoff, 1993, 1–20. 179. Hannum, Sovereignty, 41; P. Thornberry, “The Democratic or Internal Aspect of Self-Determination with some remarks on Federalism” in C. Tomuschat (ed.), Modern Law of Self-Determination, Dordrecht, Martinus Nijhoff, 1993, 114. 180. “Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.” 181. R. Mc Corquodale, “Self-determination, a Human Rights Approach,” I.C.L.Q. 1994, 879–880; Musgrave, Self-determination and National Minorities, 76. 182. Compare Hannum, “Rethinking Self-Determination,” 976; D. Murswiek, “The Issue of a Right of Secession—Reconsidered” in C. Tomuschat (ed.), Modern Law

Theoretical Framework

183.

184.

185.

186.

187.

188. 189.

190.

191. 192. 193.

37

of Self-Determination, Dordrecht, Martinus Nijhoff, 1993, 24; O. Kimminich, “A ‘Federal’ Right of Self-Determination” in C. Tomuschat (ed.), Modern Law of Self-Determination, Dordrecht, Martinus Nijhoff, 1993, 92; P. Thornberry, “Selfdetermination, Minorities, Human Rights: A Review of International Instruments,” I.C.L.Q. 1989, 876. F. Harhoff, “Self-determination, Ethics and Law” in G. Alfredsson and F. MacalisterSmith (eds.), The Living Law of Nations: Essays on Refugees, Minorities, Indigenous Peoples and the Human Rights of Other Vulnerable Groups, Kehl, NP Engel, 1996, 174; R. Stavenhagen, “Human Rights and Peoples’ Rights—The Question of Minorities,” Nordic Journal of Human Rights 1987, 23. Compare A. Cristescu, The Right to Self-determination, Historical and Current Developments on the Basis of UN Instruments, UN Doc. E/CN.4/Sub.2/404/Rev.1, 39; Y. Dinstein, “The Degree of Self Rule of Minorites in Unitarian and Federal States” in C. Brolmann (ed.), Peoples and Minorities in International Law, Dordrecht, Martinus Nijhoff, 1993, 224; Gilbert, “The Legal Protection Accorded to Minority Groups in Europe,” 73; A. Heraclides, The Self-Determination of Minorities in International Politics, London, Frank Cass, 1991, 24; Stavenhagen, “Human Rights and Peoples’Rights,” 22, 24; Turk, “Le Droit et les Minorités,” 461–462; Quane, “The UN and Self-determination,” 537–572. See inter alia Thornberry, International Rights of Minorities, 14–15; D. Thurer, “National Minorities: A Global, European and Swiss Perspective,” Fletcher Forum of World Affairs 1995, 66. See Hannum, Sovereignty, 47–48; Mc. Corquodale, “Self-Determination: A Human Rights Approach” 863; K.J. Partsch, “Les Principes de Base des Droits de l’Homme: l’Autodétermination, l’égalité et la Non-discrimination” in L. Henkin (ed.), The International Bill of Rights, New York, Columbia University Press, 1981, 67; Thornberry, “The Democratic Aspect of Self-Determination,” 101; A. Rosas, “Internal Self-Determination” in C. Tomuschat (ed.), Modern Law of Self-determination, Dordrecht, Martinus Nijhoff, 1993, 228–229. See also S. Trifunovska, “One Theme in Two Variations—Self-determination for Minorities and Indigenous Peoples,” International Journal of Group and Minority Rights 1997, 182. Murswiek, “The Issue of a Right of Secession—Reconsidered,” 27. Inter alia A. Addis, “Individualism, Communitarianism and the Rights of Ethnic Minorities,” Notre Dame Law Review 1991, 624; Murswiek, “The Issue of a right of Secession—Reconsidered,” 36; Heraclides, Minorities and Self-Determination, 26. See inter alia, UN Resolution 1514, § 6; UN Resolution 2625 and Human Rights Committee, General Comment on Article 27, § 3.2; UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities, article 8, § 4; OSCE Copenhagen Document, § 37; European Charter on Regional or Minority Languages, article 5; Framework Convention on the Protection of National Minorities, article 21. Inter alia Murswiek, “The Issue of the Right of Secession—Reconsidered,” 37. P.F. Gonidec, “Conflits Internes et Question Nationale en Afrique: Le Droit à l’autodétermination Interne,” R.A.D.I.C. 1997, 551. Possible implementations of the right to self-determination in the internal dimension include federalism, forms of territorial or personal autonomy, systems of powersharing like consociational democracy and the like. These enumerated forms are more

38

194.

195.

196. 197.

198. 199. 200.

201.

Minority Protection in Post–Apartheid South Africa

fully discussed in Henrard, Devising an Adequate System of Minority Protection, 306–313. Alfredsson, “Minority Rights in a New World Order,” 65; L. Hannikainen, “Selfdetermination and Autonomy in International Law” in M. Suksi (ed.), Autonomy: Implications and Applications, The Hague, Kluwer, 1998, 94. Murswiek, “The Issue of the Right of Secession—Reconsidered,” 38. See also Hannum, “The Limits of Sovereignty and Majority Rule” 22; Heintze, “On the Legal Understanding of Autonomy,” 14. See also Hannum, “Rethinking Self-determination,” 62. See inter alia Kimminich, “A ‘Federal’ Right of Self-determination,” 97; N. Lerner, Group Rights and Discrimination in International Law, Dordrecht, Martinus Nijhoff, 1991, 29. Inter alia Thornberry, “The Democratic Aspect of Self-Determination,” 113. Inter alia S. Trifunovska, “Self-Determination for Minorities and Indigenous Peoples,” 177. Human Rights Committee, General Comment on article 1 ICCPR, § 1. See also M. Lachs, “A Few Comments on Self-Determination, Human Rights and Minorities” in G. Alfredsson & F. Mc Alister-Smith (eds.), The Living Law of Nations: Essays on Refugees, Minorities, Indigenous Peoples and the Human Rights of other Vulnerable Groups, Kehl, NP Engel, 1996, 195; Thornberry, “The Democratic Aspect of Self-Determination,” 112–113. See also Cristescu, Right to Self-Determination: Historical and Current Developments, 51–52; Hannum, Sovereignty, 116; V. Rudnitsky, “Self-determination in a Modern World: Conceptual Development and Practical Application” in A.R. Sureda (ed.), The Evolution of the Right of Self-Determination. A Study of United Nations Practice, Leiden, Sijthoff, 1973, 76.

2

Relevant Background Information on South Africa

JUSTIFICATION OF THE CHOICE OF SOUTH AFRICA AS A CASE STUDY Post-apartheid South Africa offers an interesting case to investigate the interrelation between individual human rights, minority rights, and the right to self-determination for an adequate minority protection. South Africa is not only characterized by an extensive population diversity in terms of ethnicity, language, and religion but also has to deal with the legacy of apartheid’s abuse of several techniques of minority protection. Furthermore, the country is in the process of major constitutional reform and transformation designed to build a nation and reach “unity in diversity.” As was argued in the first chapter of this book, minority protection is (also) relevant for plural societies with many population groups without a clear majority and can then ostensibly be understood in terms of accommodation of population diversity.1 South Africa is often depicted as a country of minorities that needs to accommodate its concomitant population diversity. As Justice Sachs underlined in The Gauteng Provincial Legislature in re: Dispute Concerning the Constitutionality of Certain Provisions of the School Education Bill of 1995: “[T]here is no clear majority population in South Africa, against which minorities need to be protected. Linguistically and culturally speaking, there are only minorities in our country. The problem is to balance out their various interests rather than to protect any one group against another.”2 Even during the apartheid

40

Minority Protection in Post–Apartheid South Africa

era itself this link between the high population diversity of South Africa and minority protection was recognized as a legitimate issue worth addressing.3 Although this qualification of South Africa as a country of minorities was used under apartheid to justify the separate development strategy and although it is still used by certain Afrikaners to support their arguments, it is also in the postapartheid era more widely acknowledged and accepted as reflecting South Africa’s extensive population diversity. It is important to emphasize from the outset that this book does not seek to justify and support all the claims of a certain group of white Afrikaners but argues, on the contrary, that the concept of minority is more generally applicable to the various ethnic, religious, and linguistic population groups in South Africa. It should in any event be underscored that the white Afrikaner population is not considered as one undifferentiated group in that the difference of opinions and attitudes within that ethnic group are acknowledged. In South Africa several issues relevant to accommodation of the population diversity were (and still are to some extent) dealt with under the banner of the “national question.” The concept finds its origin in the national liberation struggle in South Africa4 and often appears in documents of the liberation movement. That movement aimed at “amalgamating various ethnic groups into a nation by creating a political interrelationship among them, giving them a single political language against oppression . . . so that they could jointly strive for national selfdetermination.”5 The focus of the liberation struggle was on nonracialism and non-tribalism and thus on unity and less on diversity in an attempt to overcome the effects of the divide and rule policy of the apartheid regime.6 As the need to unite for the liberation struggle against apartheid has now fallen away, the postapartheid era might very well be characterized by a resurgence of the ethnic distinctions within the black population and the racial distinctions,7 which would make the question of how to accommodate the concomitant population diversity and distinct identities within one state even more relevant. A second reason why it is interesting to study how South Africa deals with its population diversity is the history and legacy of the apartheid regime.8 This legacy is relevant not only because of its actual enduring effects but also because the divide and rule policy of the apartheid regime, which was designed to perpetuate white minority rule, gave several techniques and mechanisms that are often used for minority protection purposes, negative connotations. As the historical overview will demonstrate and clarify, the apartheid policy badly tainted the concepts and techniques of group identities and group rights, ethnicity/race, mother-tongue education, and self-determination while it compromised the institution of traditional authorities (and customary law). Consequently, the way in which post-apartheid South Africa approaches its population diversity, to what extent and how that diversity is accommodated, might present examples of alternative, more or less different and new ways of dealing with issues of minority protection in a plural society. The third and most important reason for choosing South Africa as a case study is the extensive reconstruction and constitutional reform that has taken place

Relevant Background Information on South Africa

41

since the official abolition of apartheid’s pillars. In a country where a minority for centuries had held a monopoly of political power, it is not surprising that that minority is not going to relinquish power without guarantees of “constitutional protection and special status.”9 Furthermore, several other population groups, like the Indians, Muslims, Hindus, and Venda, put forward certain claims to protection during the constitutional negotiations. Consequently, the issue of minority protection was prominent during the constitutional negotiation process leading up to the adoption of the interim Constitution, including the constitutional principles with which the so-called “final”10 Constitution had to comply. Eventually, a combination of strategies was opted for as purportedly amounting to the best way to protect minorities: a full-fledged democracy with a bill of rights including provisions focused on cultural and linguistic as well as religious diversity, a provision on the status of languages aimed at multi-lingualism, a constitutionally entrenched division of competencies creating a degree of provincial autonomy complemented by a reference to the right to self-determination for each cultural and/or linguistic community, and several limitations on majority rule. This approach, which is also reflected in the Constitutional Principles, already indicates that South Africa appears to acknowledge that individual human rights alone are not sufficient for an adequate minority protection. The Constitutional Principles acknowledge inter alia that the institutional structure of a country also has a potentially important impact and that there might even be a need for a right to (internal) self-determination for cultural and/or linguistic communities in the state. Furthermore, there are Constitutional Principles that require the recognition and protection of the cultural and linguistic diversity as well as the institution, status, and role of traditional leaders. The way in which these Constitutional Principles are developed and implemented in the so-called final or 1996 Constitution (and the concomitant discussions) provides interesting insights regarding the contribution of individual human rights, minority rights, and the right to self-determination to the accommodation of population diversity in a plural society with respect also to the interrelation between human rights, minority rights, and the right to self-determination for an adequate minority protection.11 The negotiations that preceded the adoption of the 1996 Constitution12 were in any event characterized by intense discussions about “unity in diversity,” about certain human rights that are generally considered to be very relevant for minority protection, about “special” minority rights, and about the right to self-determination for an ethnic population group. It is significant, and in view of the apartheid history rather unexpected, that the negotiators of the Constitutional Assembly managed to reach an agreement on an article of the Bill of Rights, namely section 31, the first paragraph of which is analogous to article 27 ICCPR.13 The effective elaboration and implementation of that section and the related provision on the Commission for the Promotion and Protection of the Rights of Cultural, Linguistic or Religious Communities will thus provide important clues about South Africa’s attitude towards the minority problem. Furthermore, there are several interesting projects and innovative

42

Minority Protection in Post–Apartheid South Africa

policy choices concerning language, education, culture (including media), traditional leaders (including recognition of customary law), and affirmative action that are being developed and that might have potential for the accommodation of South Africa’s population diversity.14 It is important to emphasize from the beginning that the importance of a comparative study regarding minority protection has its limitations, since it is very difficult to reach “universal” rules that are not excessively vague. This difficulty to formulate general rules regarding minority protection is mainly determined by the enormous variety of minority situations that are supposed to be covered by their field of application. Some of the factors that are relevant in this regard are the demographic realities, the distinctive needs and desires of the different minority groups, and the political history of the state concerned regarding accommodation of its population diversity. Therefore differing solutions will be appropriate, depending inter alia on the varying degree of territorial concentration of the minority groups, in order to elaborate a concrete system of minority protection. It remains, nevertheless, important to distill and analyze at least those general principles and standards for minority protection purposes. Several of them come up during a study of the interrelation between individual human rights, minority rights, and the right to self-determination for an adequate minority protection.

MINORITIES IN SOUTH AFRICA? Relevant Demographic Information on South Africa and Indications about Racial and Ethnic Identification It is generally accepted that demographic realities, like size and territorial concentration of the distinctive population groups of a plural society, are relevant for the elaboration of a concrete system of minority protection/accommodation of the population diversity.15 This statement is not entirely uncontroversial as is shown by the vigorous debates in South Africa on whether factors like race and/or ethnicity can/should überhaupt (at all) be taken into account in government policies and legislation. This issue is related to apartheid’s legacy16 and influences the debate about affirmative action and the propriety of using exactly those criteria on which previous discrimination was based in view of the goal of the post-apartheid era to do away with classifications on the basis of such issues as race and ethnicity. The 1996 Constitution itself indicates a preference for the concepts, “culture” and “cultural,” as compared to the concepts, “ethnicity” and “ethnic,” because the latter were tainted by apartheid’s schemes.17 This is especially noticeable in section 31 FC, which contains in its first paragraph a virtual rephrasing of article 27 ICCPR but uses “cultural” instead of “ethnic” to refer to the population groups focused upon. The heated debates in 1998 surrounding the adoption of the Employment Equity Act present a telling example of the sensitivity

Relevant Background Information on South Africa

43

surrounding the use of ethnic and/or racial criteria in legislation, also (or maybe especially) when it concerns redress measures for “previously disadvantaged population groups.”18 This proposed affirmative action legislation was seriously criticized by several employer organizations, but government officials insisted that the measures were necessary to reverse apartheid’s legacy since race would have a functional value to identify the disadvantaged sections of the population. The following data, in combination with the working definition developed in the first chapter of this book, will reveal that all population groups of South Africa that can be distinguished on ethnic, religious, and linguistic grounds constitute “minorities,”19 with the exception of the English linguistic group. In view of the increasing dominant status of English in the public domain (lingua franca), the population group having English as mother tongue do not fulfill the nondominance requirement and thus cannot be considered a “minority” in South Africa. Several authors writing on South Africa emphasize that the state is characterized by a very high degree of ethnically, linguistically, and religiously based population diversity.20 A first indication of the degree of population diversity present in South Africa can be derived from an enumeration of (most of) the distinctive racial, ethnic, linguistic, and religious groups. Regarding racial divisions, reference should be made to the classification used during apartheid; namely White, African, Indian, and Colored (the latter category referring to the people of mixed race). The Coloreds as racial/ethnic group are interesting in several respects. First of all, most of them speak Afrikaans as their mother tongue but were not considered “Afrikaners” during apartheid, an issue which is currently changing.21 It is often questioned whether something like a separate, distinct, colored identity would exist since the group is a conglomerate of all kinds of combinations of other racial/ethnic groups.22 The Constitutional provision on languages and the several languages enumerated there give an idea of the wealth of languages spoken in South Africa. Section 6, 1996 Constitution mentions not only the eleven official languages, namely Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdbele, isiXhosa and isiZulu, but also the Khoi, Nama and San languages, German, Greek, Gujerati, Hindi, Portuguese, Tamil, Telegu, Urdu, Arabic, Hebrew, and Sanskrit. This enumeration is not exhaustive as section 6 FC also has references to “all languages commonly used by communities in South Africa including . . .” and “other languages used for religious purposes in South Africa.”23 The African languages refer at the same time to ethnic groups within the African population:24 the Pedi, Sotho, Tswana, Swati, Venda, Tsonga, Ndebele, Xhosa, and Zulu. In view of the high degree of linguistic diversity and the concomitant challenge for its accommodation, it is important to point out that a broad distinction can be made between Nguni and Sotho languages. The Nguni languages are isiXhosa, isiZulu, siSwati and isiNdebele, while the Sotho languages are Setswana, Sesotho, and Sepedi. Xitsonga and Tshivenda do not belong to either group.25 The relevance of this division is determined by the fact that within each

44

Minority Protection in Post–Apartheid South Africa

group the distinctive languages are mutually understandable. Several of the recent proposals regarding language use in the public sphere effectively rely on this division.26 Hinwood emphasized at a 1997 Conference on the Commission for the Promotion and Protection of Rights of Cultural, Religious and Linguistic Communities that the state recognizes three thousand religious groups. In addition, there are an additional six thousand represented in South Africa. The South African Institute of Race Relations27 distinguishes these specific Christian churches: African Independent, Dutch Reformed, Roman Catholic, Methodist, the Zion Christian, Anglican, Apostolic, Lutheran, and Presbyterian. Mention is also made of the Hindu, Islamic, and Jewish religions. Since the statistics of the Institute also refer to “other Christian Churches” and “other religions” it is obvious that there are many more religious affiliations to be found in South Africa than those explicitly enumerated. It should also be pointed out that until 1998 many demographic accounts relied on statistics and numbers from private or semiprivate28 sources that often lack accuracy and thus do not provide an accurate account of the South African demographic reality.29 The lack of accurate information in this regard hampered the development of official policies regarding language use for purposes of government and others as the corresponding levels of government require a thorough understanding of the composition of the population which they are supposed to serve.30 The development of an appropriate policy regarding provincial cultural matters would arguably also benefit from correct information on the ethnic composition of the relevant population. The official census in South Africa is conducted by the Central Statistical Services (CSS) or, following its new name, Statistics South Africa. The first census since the first democratic elections was only conducted in 199631 as a lot of preparation was needed. The findings were processed very slowly and were gradually released to the effect that only by the end of October 1998 was a Census in Brief available with a condensed overview of the information gathered.32 It is important to highlight that although there are questions about racial selfidentification,33 about the individual’s home language(s),34 and about religious affiliation,35 there are none inquiring into cultural or ethnic identification. Nevertheless, the resulting information has a potential positive impact for the development of appropriate cultural policies. In view of certain concurrent or even exclusive provincial competencies, it is positive that the Census in Brief gives the provincial breakdowns for most factors investigated. However, it is acknowledged that these statistics are not completely accurate because of a rather serious undercount. Nationally, the racial breakdown is as follows: African 76.7 percent, White 10.9 percent, Colored 8.9 percent, and Indian 2.6 percent.36 At the provincial level, relative territorial concentrations of some of these racial groups become apparent. Whereas the Indian population is concentrated in KwazuluNatal, the large majority of Coloreds is situated in the Cape province.

Relevant Background Information on South Africa

45

The national breakdown of the official language groups gives at the same time an indication of the size of the African ethnic groups and also tends to confirm that Afrikaans is the most common language spoken by the Colored population. The Zulus make up the most numerous linguistic group (22.9 percent), closely followed by the Xhosas (17.9 percent). Afrikaans is, due to its prevalence among Coloreds, the mother tongue of a large group of South Africans, amounting to 14.4 percent. English is surprisingly the mother tongue of only a mere 8.4 percent of the South African population. The other language (and also ethnic) groups are enumerated in descending order of demographic importance: Pedis (9.2 percent), Tswanas (8.2 percent), Sothos (7.7 percent), Tsongas (4.4 percent), Swatis (2.5 percent), Vendas (2.2 percent) and finally Ndebeles (1.5 percent).37 The provincial breakdown demonstrates that there are relative concentrations of most linguistic groups in the provinces, which is relevant for the elaboration of their respective language policies. Striking examples in this regard are the Eastern Cape with 83.3 percent Xhosas, Kwazulu-Natal with 79.8 percent Zulus, and North West with 67.2 percent Tswana.38 A last demographic factor that should be expanded upon in view of the scope of this book is religion. South Africa is often characterized as a highly religious country, since many South Africans consider their religious beliefs to be central to their lives.39 Although religion is widely believed to be a “non-issue,” these strong religious identifications might play a role in the apparent ethnic resurgence.40 Consequently, the religious diversity of South Africa should be appropriately accommodated in the post-apartheid regime so as to prevent religiously based conflict. It is generally known that while the great majority of South Africans are Christian,41 that Christian majority can be further subdivided, giving rise to many religious minorities. According to the South African Survey of the South African Institute of Race Relations42 the total of Christian adherents amounts to 66.4 percent of the population, of which 17.3 percent are members of African Independent churches. Other affiliations are: 10.4 percent, Dutch Reformed; 7.6 percent, Roman Catholic; 5.9 percent, Methodist; 4.9 percent, Zion Christian; 3.8 percent, Anglican; 3.1 percent, Apostolic; 2.5 percent, Lutheran; and 1.3 percent, Presbyterian. Another 9.7 percent comprise the “Other Christian Churches.” Adherents to the Hindu religion account for only 1.3 percent, and Muslims a mere 1.1 percent of the national population. Finally, the Jewish people of South Africa constitute a particularly minute group that amounts to only 0.2 percent of the total South African population. There are certain signs of a resurgence of ethnic and racial identification among the South African population since the first nonracial elections in April 1994. It has been argued in this respect that the Colored and the Indian populations are becoming alienated from the African population and the ethnic identification lines within the African population are becoming stronger and more noticeable.43 This type of identification is a relevant factor for the assessment of the minority phenomenon in South Africa. Professor Hennie Kotze conducted an

46

Minority Protection in Post–Apartheid South Africa

interesting study in this regard on the basis of survey data gathered in October and November 1996,44 which he compared with data from a national survey conducted after the 1994 election. He attempted to establish not only the categories of ethnic identity but also the salience of religion as an element of social identity.45 The statistics reported in these questionnaires lead, according to him, to the conclusion that there is a clear lack of national identity, since the largest group of respondents define themselves rather in terms of race (including color) and culture.46 There appears, furthermore, to be a “significant degree of correspondence between race group and political preference,”47 which points to the existence of a certain degree of ethnic/racial voting patterns.48 Kotze also emphasizes that “[a]ll the respondents from the specific racial groups claim to have most in common with their own race or language group”49 and he concludes that: There would . . . seem to be a growth in cultural consciousness in South Africa since the 1994 election. This trend has occurred despite the emphasis that has been placed on nation-building between 1994 and 1996. Read in conjunction with the relatively small proportion of the South African population that defines itself as South African, this would seem to predict a rise in ethnic tension in the next few years.50 (italics added)

Neither the above statement nor the apparent rise in the level of racial and ethnic identity in post-apartheid South Africa provide in themselves a solution for the dilemma regarding the use of categories, which were previously abused during the apartheid regime, for public policy purposes. It appears that the degree of identification along racial and ethnic lines is relatively high and that race and ethnicity should not be completely disregarded by government.51 One way or the other, these findings attest to the presence of the subjective factor of the minority phenomenon in South Africa and therefore strengthen the case for an appropriate accommodation of its population diversity.52 Indications of a relatively strong religious salience53 in combination with the high religious diversity present in South Africa similarly call for an appropriate accommodation of that kind of population diversity, especially in view of the fact that during apartheid, a specific Christian Protestantism tended to dominate and determine official policy and legislation. APARTHEID STRATEGIES OF SPECIAL RELEVANCE Introduction Considering the extensive ambit of this book, it is impossible to give a detailed account of all the relevant features of South Africa’s history. It is nevertheless appropriate to give an overview of events, policies, and mechanisms (mainly) related to the apartheid era that explain not only the heightened sensitivity in post-apartheid South Africa about certain concepts and techniques but also certain reactions and attitudes of the Afrikaner, Colored, and Indian population groups. Several historical events and regulations of the apartheid system

Relevant Background Information on South Africa

47

have negatively tainted the concepts of group classification, group rights, ethnicity/ race, minority rights, and self-determination as well as the institution of traditional leaders. Apartheid is generally said to have started after the 1948 election victory of the National Party (NP), which used that concept and program as the focus of its election campaign.54 However, segregationist policies and attempts to classify the South African population55 were already noticeable centuries before, effectively since the early roots of colonialism in South Africa.56 By the end of the eighteenth century certain racially discriminatory regulations were in place,57 but it has been argued that “it was only in the period between the end of the AngloBoer War in 1902 and the 1930s58 that a cogent ideology of segregation emerged and was implemented.”59 Apartheid: Divide and Rule on the Basis of Ascribed Group Classification Apartheid is characterized by its central policy of “divide and rule,” which was aimed at ensuring white survival and hegemony by dividing the nonwhite population along racial and even ethnic lines.60 Consequently, the corresponding majority was divided into a host of minority groups that could no longer pose a threat to the white minority. In that way apartheid can also be described as a scheme to disempower the nonwhite population61 while giving privileges to the white, and especially the white Afrikaner population. That design of apartheid was inter alia demonstrated by the official language policy that excluded any indigenous language and benefited English and Afrikaans, by the job reservations for Afrikaners in the public service, and by the attempt to promote the Afrikaner people through a highly compartmentalized education system62 and led to apartheid’s description as a pervasive system of affirmative action for Afrikaners.63 Apartheid and its labyrinth of regulations were shaped out of an imposed group membership based primarily on race but, for the black population, also ethnicity.64 The entire classification process was legally imposed and ascribed, more specifically in accordance with the 1950 Population Registration Act, and often arbitrarily implemented.65 The Act distinguished four major racial categories: White, Black/African, Colored, and Indian/Asian. The African group was further subdivided in ethnic categories like Zulu, Xhosa, and Ndebele. Subsequently, through various pieces of legislation, this rigid scheme was implemented and extended to just about every area of human life.66 The most important of these acts, revealing their all-pervasive classification and concomitant segregation,67 include the 1950 Group Areas Act (implementing nationwide and obligatory residential segregation), the 1953 Reservation of Separate Amenities Act (instituting obligatory segregation of all public amenities), a host of pass laws and labor control legislation (to support the segregated residential pattern while instituting migrant labor for the black population), the 1953 Bantu Education Act (and the other acts implementing segregation in

48

Minority Protection in Post–Apartheid South Africa

education), and the 1959 Promotion of Bantu Self-Government Act laying down the basis for the policy of independent homelands or Grand Apartheid.68 Because of this history of enforced group classification, classification on ethnic and racial grounds is suspicious as well as the use of factors like ethnicity and race in public policy formulation.69 Still, it cannot be denied that ethnicity in South Africa is not merely a product of apartheid manipulation of ethnicity and race.70 To a certain extent apartheid was effective in creating a sense of separate group identities as there was genuine solidarity within the categories, inter alia because the same disadvantages were imposed on all members of the group.71 The apartheid regime did not limit its racial classifications to Black and White but further subdivided the overwhelming Black majority in three subgroups: Africans, Coloreds, and Indians/Asians. In furthering its divide and rule policy and attempting to prevent the emergence of a unified resistance movement, the apartheid government deliberately created an intermediate position for the Coloreds and the Indians. There were many similarities in the positions of Indians and Coloreds,72 which justifies dealing with them at the same time, while still giving some attention to certain peculiarities differentiating them. The preferential treatment of these two population categories, inter alia in regard to the distribution of resources,73 contributed to some kind of internalized white racism and a concomitant condescending attitude towards the African population.74 This apartheid strategy entailed for the Colored and Indian population group an ambiguous but still marginalized position, which has ongoing implications and effects.75 The Colored population is mainly concentrated in the Cape region,76 and the description and analysis of its situation will consequently often refer to the Cape province during apartheid.77 The Coloreds by no means form a homogeneous community since “mixed descent” refers to many different combinations and degrees of nonwhiteness. Under apartheid the Colored population included a “wide variety of people from a variety of ethnic, racial, social and linguistic backgrounds: Chinese, Malays, Khoi, San, Griqua.”78 Although until the turn of the twentieth century “colored” was generally understood to include all nonwhite people, by 1904 the term increasingly “came to denote an intermediate class of people distinct from the Bantu-speaking population.”79 In any event, the high variety within the Colored community raises the question whether there is überhaupt something like a Colored identity. The origin of the Colored population as well as its relative concentration in the Cape region can be explained by the high degree of social equality in the early Cape society that resulted in interracial marriages and a population of mixed descent. An important feature of the Colored status and the treatment of the Colored question in the Cape was the long history of the qualified franchise of the Colored people, namely since the Cape Colony was granted a degree of self-rule in 1853.80 The franchise was limited by conditions of wealth and education and was clearly another attempt to divide and rule the nonwhite population by creating some kind of political alliance with the white population and give them a stake in the system as it was.81

Relevant Background Information on South Africa

49

The South African population of Indian descent is mainly concentrated in the Kwazulu-Natal region. Like the Colored one, the Indian community82 is highly differentiated and this mainly on linguistic and religious grounds. The different Indian languages represented in South Africa are Tamil, Telegu, Hindi, Urdu, Kokney, Gujerati, and Memon.83 Pandya underscores in that this respect “there are linguistic differences among them which creates a complex set of interacting identities and loyalties which serve both to unite and divide the community.”84 Indian South Africans adhere furthermore to three different religions: Hinduism, Islam, and Christianity.85 There appears not to be as much discussion about whether there would exist an Indian identity, and it seems generally accepted that “[d]espite this internal differentiation, Indians do, in the context of the South African situation as a whole, constitute an identifiable group—and in this broad sense they constitute a homogeneous community.”86 Although the Indians in Kwazulu-Natal did not have the limited franchise enjoyed by the Coloreds from the Cape, they did have the same or similar preferential treatment. However, Indians had to endure more inconveniences related to their mother tongues and to the non-recognition of Hindu and Muslim marriages. In any event Indians and Coloreds were “not white enough”87 and both suffered the disadvantages of the policy of separate development, although not at the same level as the African population. They were, for example, also affected by the Group Areas Act’s institution of residential segregation and by the segregated education system and the concomitant differences in state funding and thus quality. Grand Apartheid88 and Separate Development of the Ethnic Population Groups in the Name of Self-Determination The apartheid policy relied on a further ethnic division of the black population in its determination to divide the nonwhite majority and secure white supremacy. Initially, the main way in which the ethnic divisions were reinforced and implemented was through segregated housing and primary education. There were precolonial tribes and polities that can somehow be considered to be at the base of the separate ethnic identities relied upon by apartheid, but these were “remolded and consciously shaped by new forces.”89 Subsequently, the South African colonial authorities relied upon these so-called separate ethnic identities to support their segregationist and apartheid policies.90 Although the ultimate use/abuse of ethnicity can be situated during the apartheid era and the implementation of the separate development policy or Grand Apartheid,91 earlier traces of residential segregation on ethnic grounds and its relation to control over land can already be found in the nineteenth century.92 The following paragraphs give a good, succinct account of the strategy of Grand Apartheid and its far-reaching effects, its justification in terms of self-determination,93 and its relation to apartheid’s policy to divide the African

50

Minority Protection in Post–Apartheid South Africa

population94 on ethnic grounds in an attempt to entrench white supremacy and political hegemony.95 Central to the original plan of apartheid was the solution of the “race problem” by removing Africans from “white” South Africa. In a perverted and conscious reference to United Nations resolutions supporting self-determination for all “peoples”, independent “homelands” or bantustans were created for each tribal group recognized by the South African government. . . . it was determined that all blacks would eventually lose their South African citizenship and be allocated to one or other of the tribal homelands. . . . Ten homelands were eventually created, although only four of them—Transkei, Bophutatswana, Venda and Ciskei, collectively known as the “TBVC states”—ever became nominally independent96 acquiring their own armies, passports, border posts and embassies in Pretoria, through which business with the South African government was officially conducted. The other six97 remained merely “self-governing territories”98 within South Africa . . . None of the homelands had a viable economy, and each depended on direct economic and military support from Pretoria to remain in existence.99 (italics added).

Verwoerd and his successors implemented a broad plan of political and social engineering called “separate development” or Grand Apartheid, which attempted to concentrate and limit African political rights to the respective, ethnically defined Bantustans.100 Indeed, “[e]thnic homeland loyalty was to replace national political aspirations in a move which the state hoped would defuse calls for the moral necessity of African self-government within South Africa itself.”101 The above analysis of Grand Apartheid elucidates why ethnicity is such a sensitive concept in post-apartheid South Africa.102 Because the Grand Apartheid strategy was justified in terms of self-determination for the distinctive ethnic groups, that concept and a system of federalism on ethnic grounds are burdened with negative connotations and thus looked upon with suspicion in contemporary South Africa.103 Language and Tensions among Linguistic Groups in South Africa Historically, the battle between the two groups of colonizers, namely the English- and the Dutch-(later Afrikaans) speaking, and the ensuing language regulations have enduring legacies for contemporary linguistic policies and regulations in South Africa. The old struggle still forms the ideological background for Afrikaner nationalism and for the strong emotional reactions from a category of Afrikaners against rules purportedly aimed at multi-lingualism but considered to be a disguise for a move towards English lingua franca. These rules are interpreted as another attempt to destruct their much cherished and fought for language in favor of English. Two historical events have had an important influence on the rise of Afrikaner nationalism and on the emotions surrounding the Afrikaner language,104— the Great Trek and the Anglo-Boer War. The origin of Afrikaner ethnic

Relevant Background Information on South Africa

51

consciousness can be traced back to the second half of the nineteenth century, and the impact of British imperialistic interventions in this regard should not be underestimated.105 Regarding the Great Trek, it has been pointed out that “[f]rom the 1850s onwards, the Dutch Afrikaners in the Cape faced a twin assault on their cultural and spiritual values in the form of the so-called liberal tendency and intensified British cultural imperialism.”106 An example of the growing challenge of this cultural imperialism, which is related to the sensitive issue of medium of instruction,107 concerned the abolition in 1865 of Dutch as medium of instruction in the public schools, while the majority of Afrikaners did not sufficiently master English. Another sensitive issue was the pressure that resulted from the fact that speaking English was a condition for a job in the civil service and in the legal and commercial field.108 The Great Trek in the 1830s was realized by a group of about fifteen thousand Afrikaners to escape British rule in the Cape and resulted in the creation of two so-called Boer republics, namely the Transvaal and Orange Free State.109 Ongoing tensions between the two Boer republics and the two British ones and attempts at expansion led eventually to the Anglo-Boer War of 1899–1902.110 That war lasted for three years and resulted in immense mutual bitterness that has ongoing implications in the twentieth century.111 Notably, the British concentration camps for the Afrikaner women and children led to a great deal of resentment on the part of the Afrikaners.112 Since the Union of South Africa in 1910, South Africa has had two official languages, Dutch (later Afrikaans) and English, with equal status in public business, which was also reflected in a bilingual public service.113 This situation meant at the same time that the development and promotion of the several indigenous languages and the Indian languages were neglected, giving them an inferior status.114 As the discussion of the current language policy will underscore, this inferiority is strongly internalized by the distinctive African population groups, to the extent that language awareness campaigns are argued to be necessary to counter this situation. Religion: Its Prevalence and Diversified Nature in South Africa The demographic overview already revealed that about three fourths of the South African population adheres to Christianity but that there are nevertheless several internal differences within the Christian population that can be quite farreaching. In addition, the overview also shows that several other world religions are represented.115 From the colonial times around 1652 until the start of the post-apartheid era, unequal legal status was accorded the different belief systems.116 From the beginning, public policy was characterized by Protestant hegemony and a concomitant restrictive attitude towards other religions.117 It can thus be said that there were nearly 350 years of religious apartheid, closely matching sociopolitical apartheid,118 which entailed an unequal measure of “recognition

52

Minority Protection in Post–Apartheid South Africa

and respect, as shown by the virtually total absence of a balanced, multi-faith program of religious studies in state-funded schools.”119 The issue of religious education can be related to one of the principles of Christian National Education, typically adhered to by public schools in South Africa (especially after the official start of apartheid in 1948),120 namely that Christian values should pervade education.121 It should also be noted that the predominance of Christianity in public policy went hand in hand with the nonrecognition of Hindu and Muslim marriages with all its pernicious consequences.122 As Justice Sachs correctly pointed out in Lawrence v The State and Another; Negal v The State and Another; Solberg v The State and Another, “[T]he marginalization of communities of Hindu and Muslim persuasion flowed from and reinforced a tendency for the norms of ‘Christian civilization’ to be regarded as points of departure, and for Hindu and Muslim norms to be relegated to the space of the deviant ‘Other’.”123 Finally, it should be mentioned that some of the South African churches, namely the Nederduits Gereformeerde Kerk124 and the Nederduits Hervormde Kerk, actually legitimized apartheid on religious grounds.125 Education in Apartheid South Africa: Racial Segregation and Quality Differentiation In respect to education during apartheid, several issues should be mentioned as they present sensitive issues in the current, post-apartheid phase. A primary issue is the racially segregated structure of education in South Africa,126 which went hand in hand with marked differences in state funding, affecting teacher/ pupil ratio, qualifications of the teachers, and other quality features.127 The curriculum was also differentiated on racial lines so that the distinctive groups could be prepared for the jobs they were meant to take up. “Bantu Education” or the system for the African population can be described as a system that prepared for a subordinated position in the workplace via a focus on practical subjects and an inferior curriculum.128 Even tertiary education was designed to be segregated from 1959 onwards as most of the faculties in the open universities were closed to African, Indian, and Colored students, and separate ethnic institutions of higher education were set up “as agencies of academic apartheid.”129 Language policy regarding education has been and still is a very sensitive issue in South Africa. During apartheid days the policy regarding the African population was constructed to promote ethnic identity while hampering proficiency in the official languages in order to limit access to employment.130 As Heugh emphasizes: “[T]he language-in-education plan became a central component of apartheid education. The principle of mother-tongue education was conveniently applied to further the political interests of division amongst all communities.”131 The sudden change from mother-tongue medium of instruction to the double medium or fifty-fifty policy (English/Afrikaans)132 caused a great deal of the educational backlog among African students.133 The shift occurred at a stage when the students did not have adequate proficiency in these two

Relevant Background Information on South Africa

53

languages to meet the requirements of the syllabus that was in any event cognitively impoverished.134 The 1976 Soweto uprisings, rather significant for the entire resistance movement, were mainly caused by the inflexible attempt to implement the fifty-fifty policy after 1975.135 The concept of Christian National Education was based on Afrikaner exclusivity and aimed at single-medium institutions for Afrikaners. During apartheid, education was the only sector in which a distinction was made between the Afrikaner and the English-speaking population.136 Furthermore, Christian National Education required schools to educate their students about and in line with the spirit of Christian values.137 The official apartheid policy wanted to give a Christian character to state schools and targeted state funding preferentially to private schools with such a character.138 The courses that were part of the public curriculum, namely “religious studies” or “biblical studies,” had an essentially reformed and very conservative theological perspective in the sense that the focus was on Christian essentials, while hardly anything was said about the other world religions. Finally, something needs to be said about the phenomenon of so-called open schools in the 1990s. Private schools had been allowed to admit students of color since 1977,139 and there was at the same time a trend among segregated Colored and Indian schools to admit, in defiance of official regulations, African students.140 The actual open school experience is said to have started in the 1990s, as “[i]n October 1990, the minister of white education in South Africa, Mr. Piet Clase, announced the possibility for white schools legally to enroll black pupils into their schools. This was to be made possible by the school’s white parent community voting on whether they would want to do so. These choices were circumscribed by particular conditions. These included that the ‘cultural ethos of the school needed to be kept intact’ and that ‘white pupils needed to remain in the majority’.”141 The latter requirement’s racist implications are quite evident, but the former stipulation is interesting in that it allowed for schools to determine the nature of the ethos of the school concerned and “ ‘Indian’ and ‘colored’ schools were also implicitly given the green light to enroll African pupils into their schools”.142 Originally previously white schools could choose between three models: namely A (private), B (public but with schools determining their own admission policy provided that the majority of students remained white) and C or stateaided (for teachers salary). However, in 1992 the government converted all white and model B schools to semi-privatized model C schools.143 This was widely perceived as an attempt to continue segregation and white exclusivity by the back door.144 Customary Law and Traditional Leadership Before the Constitutional Negotiation Process Two other distinct but closely interrelated and sensitive issues in postapartheid South Africa that are greatly influenced by the apartheid policies are the recognition of customary law and the status of traditional leaders. A brief

54

Minority Protection in Post–Apartheid South Africa

historical overview of the policy concerning the recognition of customary law in South Africa seems appropriate. The Cape was the first colony to have a policy in this regard and its Ordinance 50 of 1928 implied a nonrecognition of indigenous customary law145 since “the principle of equal treatment for all peoples within the Colony became a justification for applying only Roman-Dutch law.”146 According to Bennett, an authority in the field of customary law in South Africa: In Natal, by contrast, although everyone in the colony was initially subjected to RomanDutch law, a more realistic appraisal of the problem of governing a large and potentially rebellious population soon dictated the need to recognize aboriginal law. Accordingly, a Royal Instruction of 8 March 1848 directed that local law and customs were not to be abrogated unless they were “repugnant to the general principles of humanity recognized throughout the whole civilized world. When the Transvaal was annexed in 1877 a similar policy was followed, and broadly speaking the same approach to African law was adopted for government of the Transkeian Territories. A uniform approach to the recognition of customary law in South Africa was eventually imposed in 1927, with the passing of the Native Administration Act.147

The Native Administration Act intended to establish a segregated system of justice and thus created a separate system of courts (the commissioners’ courts and their courts of appeal) to hear civil disputes between Africans.148 The institution of these courts gave approved traditional rulers judicial powers to apply customary law.149 The commissioners’ courts became increasingly an agency of the apartheid regime150 and were abolished in 1986.151 The 1988 Law of Evidence Amendment Act extended the possibility to apply customary law to all courts, but this was still a matter of the court’s discretion. The amendment maintained the repugnancy proviso (with the exception of bride wealth) and contained the innovation that the law should be “ascertained readily and with sufficient certainty.”152 The status of the repugnancy proviso is indeed seriously discussed and revisited in the post-apartheid era.153 It should also be pointed out that certain codes of “customary law” were made. This codification process has, however, often entailed a distortion and redefinition of customary law.154 It remains to be seen how this distortion factor will be dealt with in future policies regarding the recognition of customary law. The main issue that is repeated time and again regarding traditional leaders and the apartheid regime is that there had been a clear and partially successful attempt of the apartheid regime to co-opt the traditional leaders and interfere with the leadership structures. These leaders consequently have the reputation of being puppets of the apartheid regime155 and their legitimacy under customary law is questioned.156 During apartheid, certain chieftaincies were even artificially created for political goals. Despite the fact that many traditional leaders forfeited local recognition by implementing state policies,157 the institution still has considerable support, especially in the rural areas.158 Traditional leaders are definitely still a reality that cannot be ignored in the post-apartheid era.159

Relevant Background Information on South Africa

55

Reaction against Apartheid and the Beginning of the Negotiation and Transformation Process The foregoing overview of the South African history has revealed that group classifications and concomitant differentiations as well as pervasive separate development policies affecting most spheres of life were central characteristics of the apartheid regime. The reaction by the oppressed became increasingly focused on unity, nonracialism and non-tribalism. When the ANC was founded in 1912, its major aim was to unite the Africans by transcending ethnic dividing lines.160 Nonracialism, as an ethos, started off with the creation of the Communist Party and the new Unity Movement and developed rather slowly and gradually. The next important step was the emergence of the Congress Movement, which entailed the mobilization of the four racial groups, at first in their own Congress but subsequently in one combined alliance.161 This alliance not only increased general mobilization but also developed the 1955 Freedom Charter, which is still regularly referred to by the ANC as the basis of its policies and which recognizes inter alia the rights of all national groups. The Freedom Charter’s theoretical basis is the National Democratic Revolution, opposing oppression and racial discrimination. The central thrust of the NDR is not to promote fractured identities but to encourage the emergence of a common South African identity. Although it is acknowledged that some of the identities associated with “culture” or “ethnicity” or “religion” can in fact be contradictory to the building of a new nation based on principles of equity,162 it is equally emphasized that there is no attempt to threaten the existing population diversity.163 This historical development thus reveals that the ANC’s focus for the post-apartheid era is on nonracialism,164 including nontribalism, and national unity while pledging to respect the existing diversity.165 From the end of the 1970s the conviction grew that change was needed166 because the apartheid regime as it stood was deficient and the policy of separate development167 and all-round segregation168 impossible to achieve fully.169 The increasing disillusionment went hand in hand with mounting international pressure as well as internal resistance so that “[t]owards the end of the 1970s even the South African government realized that fundamental constitutional change was inevitable.”170 The search for a new South African order started with a “doomed unilateral exercise” resulting in the 1983 tricameral constitution.171 The main feature of this constitutional dispensation, which was meant to appease and co-opt the Colored and Indian population in an attempt to save white supremacy, was the existence of three legislative chambers, one for the White, one for the Colored, and one for the Indian population.172 It is generally understood that the system instituted by the 1983 Constitution was a mere window-dressing exercise in that the white population stayed effectively in control while the African population was completely excluded from any participation in government.173 Although the majority of whites considered this Constitution to be a step in the right direction,174 the nonwhite population reacted overall with anger and

56

Minority Protection in Post–Apartheid South Africa

resentment. This led to a further breakdown of public order, resulting in a (re-) imposition of a five-year state of emergency between 1985 and 1990.175 The 1983 constitutional exercise also revealed that when the government recognized that traditional apartheid did not work, it turned to the idea of group rights in an attempt to construct an acceptable version of apartheid.176 This attempt, of course, gave a further negative connotation to the concept of group rights, as became apparent in the subsequent constitutional negotiations.177 Overall, it can be argued that around the middle of the 1980s it was evident that apartheid did not function constitutionally, socially, politically, or economically and that the government understood it was no longer in control.178 In the 1980s there were increasingly intense negotiations between the government and the ANC and other parties from the resistance movement. Eventually, this led to De Klerk’s famous speech, 2 February 1990, at the annual opening of Parliament which set in motion the protracted constitutional negotiation process leading up to the first multiracial elections in April 1999 and the first democratic constitution for South Africa. De Klerk announced in that speech three revolutionary processes: the democratization of the state system (including general franchise, equality, a bill of human rights, the repeal of apartheid legislation, and protection of minorities), the normalization of political processes (inter alia ending the ban on ANC and PAC and releasing Mandela), and a negotiation process for a new, democratic constitution.179 NOTES 1. Strydom underscores the importance of the accommodation of the population diversity in a multi-ethnic society in a way that points to the link with issues of minority protection, as he uses analogous concepts: “[e]ssentially, the debate on institutional changes in the structures of state authority is about finding an answer to a question that is central to an understanding of a constitutional democracy in a multiethnic context, namely how to integrate the diversity of needs and aspirations in a noncoercive manner that would strengthen the legitimacy of state authority and prevent a schism in society. Integration in this sense precludes assimilation which is the denial as opposed to the recognition of difference” (H.A. Strydom, “The International and Public Law Debate on Cultural Relativism: Origin and Implications,” South African Yearbook on International Law 1996, 398). See also V. Sacks, “Multiculturalism, Constitutionalism and the South African Constitution,” Public Law 1997, 681. 2. CCT 39/95, 4 April 1996; 1996 (3) SA 165 (CC), 1996 (4) BCLR 537 (CC), § 81. See also MEC of Education for Gauteng (member of the ANC), Mary Metcalfe, speaking during the debate on the s 185 Commission in the provincial legislature 4 August 1998: “[A]ll individuals in South Africa are in fact members of minority groups . . . A Tsonga speaker, an English speaker, an Afrikaans speaker, a Zulu speaker, a Xhosa speaker are all members of minorities in this country. . . . in terms of religion . . . we are all members of minorities.” (transcripts of debate in Gauteng Legislature, 4 August 1998, on the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, document obtained from the national department of constitutional development, 58).

Relevant Background Information on South Africa

57

3. See also the opening speech to a 1987 conference on “Minorities: Self-Determination and Integration”: “[T]en different indigenous languages and their associated cultures are alive and active in South Africa. Moreover, these indigenous languages are supplemented by a wide range of other languages . . . each with its own culture. With such a spectrum, it is understandable that there is no majority group in South Africa, all groups are minorities. Truly, it can be said that South Africa is a world in one land. Against this background it is fitting that this conference on minorities, with its world-wide participation be held in South Africa” (C.F. Crouse, “Welcoming Remarks” in X (ed.), Minorities: Self-Determination and Integration, Conference November 2–6, 1987 in Johannesburg, Johannesburg, RAU, 1987, 1). 4. M. Van Diepen, “Introduction” in M. Van Diepen (ed.), The National Question in South Africa, London, Zed Books, 1998, 4; X, Nation-Formation and Nation-Building. The National Question in South Africa, [www.anc.org.za/ancdocs/discussion/ nation.html], 1. 5. C. Mzala, “Revolutionary Theory on the National Question in South Africa” in M. Van Diepen (ed.), The National Question in South Africa, London, Zed Books, 1988, (30) 39. It should also be mentioned that the ANC held in May 1997 a special caucus on “the national question” in South Africa. “The consensus that emerged from this meeting was that black people have to play a leading role in South Africa after apartheid but that there is a place for minorities in South Africa” (A. Venter, Questions of National Identity in Post-Apartheid South Africa (Occasional Papers), Johannesburg, KAS, July 1998, 10). 6. In this respect it was also said about the attitude of the United Nations to the South African situation during apartheid that “[t]he all too obvious injustices of white minority rule over blacks obscured the possible relevance of the concept of minority rights to groups within the black population” (B. Manby, “South Africa: Minority Conflict and the Legacy of Minority Rule,” Fletcher Forum of World Affairs 1995, 33). 7. For a warning about the possible revival of ethnic nationalism in South Africa, see F. Van Zyl Slabbert, “Key Issues in Post-Liberation Politics in South Africa” in H. Kotze (ed.), A Future South Africa? Prospects for 1999 and Beyond, Stellenbosch, Centre for International and Comparative Politics, 1997, 10, 12. 8. Cf. Chaskalson, the president of the South African Constitutional Court, underlines the importance of the history of the state to understand the relevance and the development of human rights in South Africa (A. Chaskalson, “Judging Human Rights in South Africa,” E.H.R.L.R. 1998, 181). 9. I. Currie, “Minority Rights: Education, Culture and Language” in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, Kenwyn, Juta, loose-leaf, 35.1. 10. It is impossible to say whether this constitution will effectively be the final constitution of South Africa but the term “final Constitution” is used in South Africa to identify the constitution that was developed in accordance with the interim Constitution and is meant to govern the country for an indefinite period of time. 11. H.A. Strydom, “Minority Rights Issues in Post-Apartheid South Africa,” Loyola of Los Angeles International and Comparative Law Journal 1997, 881. 12. The Constitution of the Republic of South Africa, Act No 108 of 1996 (hereinafter interchangeably: “final” Constitution and 1996 Constitution). 13. It should also be pointed out that the situation of South Africa during the apartheid era and the justifications then put forward for several of its mechanisms, have had a marked influence on the UN’s attitude to issues of minority protection (inter alia

58

14.

15.

16.

17.

18.

19.

20.

Minority Protection in Post–Apartheid South Africa

G. Hollamby, Group and Human Rights, Minority Rights—Discussion Paper Prepared for the South African Law Commission (SALC), Pretoria, SALC, 1993, 41). Regarding the issue of the national question and its relation to the “National Democratic Revolution” (hereinafter: NDR), the ANC government makes the following statements that reveal the difficulties to achieve the goal of unity in diversity: “[I]n the current phase of transition and transformation, it is critical that we revisit this discussion (on the national question), to ensure that we share a common understanding of this complex question. This applies . . . to our challenge of transforming South African society . . . With regard to the national question; race, ethnic origins, language and sometimes even religion, have an important role to play in defining a person’s identity. . . . However, the main thrust of the NDR is not to promote fractured identities, but to encourage the emergence of a common South African identity. At the same time, it should be noted that some of the identities associated with “culture” or “ethnicity” or “religion” can in fact be contradictory to the building of a new nation that is based on principles of equity. . . . as we seek to integrate South African society across racial, language, ethnic and other barriers, we are also engaged in the process of developing those individual elements that distinguish these various communities from one another. It will not be possible to achieve the kind of balance that will satisfy everyone for all time, even if the broad principle is attained in practice” (X, Nation-Formation and Nation-Building. The National Question in South Africa, [www.anc.org.za/ancdocs/discussion/nation.html], 1–5). Cf. T. Coetzee, Die Verrekening van die Ethnisiteitsfaktor in Grondwetskrywing in Suid-Afrika—’n Politikologiese Analise, Bloemfontein, University of Orange Free State, 1995, 91. For a reference to the apartheid policy in this regard, see J. Sonn, “Breaking Down the Borders” in W. James et al. (eds.), Now That We Are Free. Coloured Communities in a Democratic South Africa, Johannesburg, IDASA, 1996, 66. See also H. Kotze, Culture, Ethnicity and Religion: South African Perceptions of Social Identity (Occasional Papers), Johannesburg, Konrad Adenouer Stiftung, April 1997, 2 and 7. Welsch underlines for example that “[i]t is certainly true that the manipulation of ethnicity by the state for the purposes of facilitating domination evoked a major backlash against the notion of ethnicity on the part of the Africans” (D. Welsch, “Federalism and the Divided Society: A South African Perspective” in B. De Villiers (ed.), Evaluating Federal Systems, Dordrecht, Martinus Nijhoff, 1994, 244). See also Venter, Questions of National Identity, 1. X, “Bill Does Not Reintroduce Apartheid Classifications: Mdladlana,” [www.anc.org.za/ cgi-bin/shownews], 21 July 1998; X, “Opposition Childish on Equity Bill: ANC,” [www.anc.org.za/cgi-bin/shownews], 19 August 1998; X, “Employment Equity Bill could be Unconstitutional: Leon,” [www.anc.org.za/cgi-bin/shownews], 19 August 1998. See also M. Prozesky, “Religious Justice at Last? Believers and the New Constitution in South Africa,” Journal of Theology of Southern Africa 1995, 12; Sacks, “Multiculturalism, Constitutionalism and the South African Constitution,” 681. Inter alia Coetzee, Die Ethnisiteitsfaktor, 69; Kotze, South African Perceptions of Social Identity, 2; Manby, “South Africa: Minority Conflict and the Legacy of Minority Rule,” 27. See also L.J. Boulle, South Africa and the Consociational Option: A Constitutional Analysis, Kenwyn, Juta, 1984, 36; D. Welsch, “The Governing of Divided Societies: a South African Perspective,” Africanus 1989, 61.

Relevant Background Information on South Africa

59

21. Regarding the past and future content of Afrikaner identity, see H. Giliomee, “A Politically Incorrect View of Non-Racialism and Majority Rule” in W. James et al. (eds.), Now That We Are Free. Coloured Communities in a Democratic South Africa, Johannesburg, IDASA, 1996, 98. 22. For a very sceptical view of “a” colored identity, see E. Rasool, “Unveiling the Heart of Fear” in W. James et al. (eds.), Now That We Are Free. Coloured Communities in a Democratic South Africa, Johannesburg, IDASA, 1996, 55–56. 23. Section 6, 1996 Constitution. See also Manby, “South Africa: Minority Conflict and the Legacy of Minority Rule,” 27; South African Institute of Race Relations (SAIRR), Race Relations Survey 1994–1995, Johannesburg, SAIRR, 1995, 4 (remark that the same data are used in the 1997–1998 version of the South African Survey of the SAIRR). Meshtrie mentions, for example, that other Indian languages spoken in smaller Indian sub-communities are Meman and Konkani (R. Meshtrie, Indian Languages Abroad: 137 Years of Indian Languages in South Africa,” Cape Town, UCT, 1997, 1). 24. Kotze, South African Perceptions of Social Identity, 2. 25. See inter alia N. Alexander, Language Policy and National Unity in South Africa/ Azania, Cape Town, Buchu Books, 1989, 17; Coetzee, Die Ethnisiteitsfaktor, 69. 26. A good example is the proposal of July 1998 regarding language use in Parliament and more specifically the issue of the language of parliamentary documents as well as the Hansard (containing the parliamentary debates): X, “Parties Clash on Proposed New Parliamentary Language Policy,” [www.anc.org.za/cgi-bin/shownews], 12 March 1998; X, “Dramatic Change in Language Proposals for Parliament,” [www.anc.org.za/ cgi-bin/shownews], 20 July 1998. 27. SAIRR, Race Relations Survey 1994–1995, 10. 28. Inter alia the statistics of the Development Bank of Southern Africa, relied upon by the Race Relations Survey of the South African Institute of Race Relations as well as by Professor H. Kotze for the analysis of his survey (H. Kotze, Culture, Ethnicity and Religion: South African Perceptions of Social Identity, 15). 29. See also Preliminary Estimates of the Size of the Population of South Africa, Pretoria, Central Statistical Services, June 1997, 42, which underlined that even the existing administrative registers are characterized by a high degree of underreporting. 30. Section 6(3), 1996 Constitution makes abundantly clear that factors of knowledge of certain languages and spread of home languages are relevant factors for the determination of language use for purposes of government by all three tiers of government, insofar as it concerns one of the eleven official languages: (a) The national government and provincial governments may use any particular official language for the purposes of government, taking into account usage, practicality, expense, regional circumstances and the balance of the needs and preferences of the population as a whole or in the province concerned; but the national government and each provincial government must use at least two official languages. (b) Municipalities must take into account the language usage and preferences of their residents (italics added).

Analogous remarks can be made regarding the implementation of the Language in Education Policy and especially the National Norms and Standards regarding language policy (in terms of section 6(1) of the South African Schools Act, 1996) as developed by the national department of education in furtherance of the South African Schools Act, 1996 .

60

Minority Protection in Post–Apartheid South Africa

31. See official document of the Central Statistical Services entitled CENSUS ‘96. 32. See inter alia X, “Census reveals Racial Lined Disparities,” [www.mg.co.za/mg/ news/98oct2/21oc-census.html]. It should be mentioned though that it is acknowledged that these statistics are not accurate due to a serious undercount. 33. Question 5, Census ‘96 is formulated as follows: “How would (the person) describe him-herself? 1/ African, 2/ Coloured, 3/ Indian/Asian, 4/ White.” The self-identification is only partial as one has to choose of predetermined categories which furthermore take up the apartheid classifications. 34. Question 6, Census ’96 is formulated as follows: “1/ Which language does (the person) speak most often at home? Write the language in the space provided. 2/Does (the person) speak more than one language at home? Yes or no.” 35. Question 7, Census ‘96 is an optional question and open in nature: “What is (the person’s) religion, denomination or belief?” 36. That information is included in section 2.6 of the Census in Brief entitled “Population Group by Province (percentages)”: Statistics South Africa, The People of South Africa Population Census, 1996—Census in Brief, Pretoria, Statistics South Africa, 1998 (hereinafter, Census in Brief). 37. Census in Brief, 2.8 entitled “Home Language by Province (percentages)” has in its last column the national percentages. 38. Ibid. 39. Inter alia R.B. Nicholson, “Ethnic Nationalism and Religious Exclusivism,” Politikon 1994, (49) 53. 40. Ibid., 49. 41. Nicholson, “Ethnic Nationalism and Religious Exclusivism,” 57; Prozesky, “Religious Justice at Last?” 11; S. Van Der Merwe, “The Government’s Framework for Constitutional Change and Negotiation” in H. Giliomee & L. Schlemmer (eds.), Negotiating South Africa’s Future, Johannesburg, Southern Books, 1989, 43. 42. SAIRR, Race Relations Survey 1994–95, 10. 43. Inter alia N. Alexander, “The Great Gariep: Metaphors of National Unity in the New South Africa” in W. James et al. (eds.), Now That We Are Free: Coloured Communities in a Democratic South Africa, Johannesburg, IDASA, 1996, 107; S. Ellmann, “The New South African Constitution and Ethnic Division,” Columbia H.R.L.R. 1994, 7. 44. The goal of the 1996 survey was to interview a representative sample of South African citizens to establish information about identity and religion of the people involved. The survey design, method of sampling, and types of questionnaires are explained in Kotze, South African Perceptions of Social Identity, 5–7. 45. Kotze, Culture, Ethnicity and Religion: South African Perceptions of Social Identity, 3. 46. Ibid., 8. 47. Ibid. See also C. Jung & J. Seekings, “‘That Time was Apartheid. Now It’s the New South Africa’: Discourses of Race in Ruyterwacht 1995” in I. Shapiro & W. Kymlicka (eds.), Ethnicity and Group Rights, New York, New York University, 197, 504–505; C. Sartori, “How Could the Constitution Limit Majority Rule,” Transact September 1995, 5. 48. These patterns might, however, be declining in the run up to the 1999 elections. The Democratic Party (DP) seems to establish a dominant position among whites whereas that used to be the case for the National Party (NP) with a very low percentage voting for the ANC. The NP still has a lot and even most support among Colored voters whereas Indians predominantly tend to be pro DP or NP. The ANC is still the most

Relevant Background Information on South Africa

49. 50. 51. 52. 53.

54.

55.

56. 57. 58.

59. 60.

61

popular party among black people (72.9 percent) whereas that population group virtually neglects the DP and the NP. It is thus not the case that a specific racial group votes for one specific political party. There are, nevertheless, clear tendencies among the distinctive racial groups to be in favour of certain political parties while neglecting others. In the Western Cape and its concentration of Coloureds and white Afrikaners, the NP seems to hold a clear lead with 30.2 percent. Regarding ethnic voting patterns, it should be underlined that the IFP, and its Zulu-nationalistic programme, is still the single largest party in Kwazulu-Natal but well at a significant lower level than in 1994, namely from 50 to 37.7 percent (“Election Survey,” www.anc.org.za/cgi-bin/shownews, 21 August 1998). See also S. Gloppen, South Africa: the Battle over the Constitution, Vermont, Ashgate, 1997, 248. At the end of 2000 the DP and the NNP merged and formed the Democratic Alliance (DA). The ANC still depicts the DA as a “white” party but the DA itself sets out to reach and appeal to all population groups. Kotze, South African Perceptions of Social Identity, 11. Ibid. Coetzee, Die Ethnisiteitsfaktor, 1; Kotze, South African Perceptions of Social Identity, 2. Manby, “South Africa: Minority Conflict and the Legacy of Minority Rule,” 51. PAGAD (Peoples Against Gangsterism and Drugs) is a vigilante group that not only mobilizes against drug lords but also claims to be an organization of Muslims. They are connected to the “rising tide of violence attributed to Muslim fundamentalists” and are only one example of heightened religious mobilization. See inter alia X, “Mbeki calls on Moderate Muslims to Oppose Violence,” DND 01/20/99, 1; X, “Qibla March. Police to Stop Planned Muslim March on Parliament,” [www. anc.org.za/cgi-bin/shownews], 14. Inter alia T.R.H. Davenport, South Africa, a Modern History, Toronto, University of Toronto Press, 1991, 519. See also N. Worden, The Making of Modern South Africa. Conquest, Segregation and Apartheid, Oxford, Blackwell, 1994, 87, who underlines that the NP had pulled voters together by means of the apartheid slogan. The typical European urge to classify the population was furthermore also exemplified by the missionaries delimitation and distinction of several linguistic and thus also ethnic communities. Cf. Worden, The Making of Modern South Africa, 112. See interview with J. De Lange, constitutional negotiator for the ANC, Cape Town, 12 April 1996. Cf. Davenport, South Africa, a Modern History, 518. Worden, The Making of Modern South Africa, 66–67. The impact of the Broederbond, established in 1918, on this increase in segregationism cannot be underestimated. The bond was formed after the Anglo Boer War as a reaction against the English and its major goals were achieving Afrikaner unity, supporting the Afrikaner’s love for his language, traditions and history, and more importantly, maintaining and promoting Christian values (A.N. Pelzer, Die Afrikaner Broederbond: Eerste 50 Jaar, Cape Town, Tafelberg, 1980, 14). Worden, The Making of Modern South Africa, 72. Worden, The Making of Modern South Africa, 95. See also T.W. Bennett, Human Rights and African Customary Law under the South African Constitution, Kenwyn, Juta, 1995, 7. Regarding the “formation” of a Colored identity see I. Goldin, “Coloured Identity and Coloured Politics in the Western Cape Region of South Africa” in L. Vail (ed.), The Creation of Tribalism in Southern Africa, Berkeley, University of California Press, 1989, 241.

62

Minority Protection in Post–Apartheid South Africa

61. For a description of the apartheid regime in terms of (a denial of) multiculturalism, see C. Soudien, “The Debate on Equality and Equity in South African Education” in M. Cross et al. (eds.), Dealing with Diversity in South African Education. A Debate on the Politics of a National Curriculum, Kenwyn, Juta, 1998, 128. 62. A.N. Pelzer, Die Broederbond, 136–139, 163. 63. See inter alia A. Sachs, Advancing Human Rights, Johannesburg, South African Constitution Studies Centre, 1994, 98; F. Sonn, “Afrikaner Nationalism and Black Advancement as Two Sides of the Same Coin” in C. Adams (ed.), Affirmative Action in a Democratic South Africa, Kenwyn, Juta, 1993, 6. 64. Inter alia Manby, “South Africa: Minority Conflict and the Legacy of Minority Rule,” 27; Kotze, South African Perceptions of Social Identity, 2; D. Van Wyk, “Introduction to the South African Constitution” in D. Van Wyk et al. (eds.), Rights and Constitutionalism. The New South African Legal Order, Kenwyn, Juta, 133. 65. Inter alia Coetzee, Die Ethnisiteitsfaktor, 90; Worden, The Making of Modern South Africa, 95; P. Harries, “Exclusion, Classification and Internal Colonization; the Emergence of Ethnicity among the Tsonga-speakers of South Africa” in L. Vail (ed.), The Creation of Tribalism in Southern Africa, Berkeley, University of California Press, 1989, 110. 66. Cf. Manby, “South Africa: Minority Conflict and the Legacy of Minority Rule,” 28 67. Davenport, South Africa, a Modern History, 328; Worden, The Making of Modern South Africa, 95, 109–110. 68. Davenport, South Africa, a Modern History, 336–341. 69. See also E. Van Der Ross, “Minority Marginal and Mixed—the Coloured People” in X (ed.), Minorities: Self-Determination and Integration, Johannesburg, RAU, 1987, 9. 70. Harries, “Exclusion, Classification and Internal Colonialism,” 110. 71. See also Goldin, “Coloured Identity in the Western Cape Region of South Africa,” 246 and 249. 72. Y. Carrim, “Minorities Together and Apart” in W. James et al. (eds.), Now That We Are Free: Coloured Communities in a Democratic South Africa, Johannesburg, IDASA, 1996, 47, 50. 73. Manby, “South Africa: Minority Conflict and the Legacy of Minority Rule,” 28. 74. Galiguire, “Voices from the Communities,” 12; Carrim, “Minorities Together and Apart,” 47; Sonn, “Breaking Down the Borders,” 66; E. Van Der Ross, “Minority Marginal and Mixed: the Coloured People of South Africa,” 3. 75. Galiguire, “Voices from the Communities,” 14–15. 76. Van Der Ross, “Minority Marginal and Mixed: the Coloured People of South Africa,” 4. 77. During the heyday of apartheid, the South African territory was divided in four provinces (Cape, Natal, Orange Free State, and Transvaal) and ten homelands, four of which eventually became nominally independent and thus no longer formed part of the South African state (namely Ciskei, Transkei, Bophutatswana, and Venda). This territory was reunited and divided in nine provinces in the 1993 Constitution. 78. E. Rasool, “Unveiling the Heart of Fear” in W. James et al. (eds.), Now That We Are Free: Coloured Communities in a Democratic South Africa, Johannesburg, IDASA, 1996, 55. See also Sonn, “Breaking Down the Borders,” 65. 79. Goldin, “Coloured Identity and Coloured Politics in the Western Cape Region of South Africa,” 242–243. The term “Bantu” refers to the native population. 80. Goldin, “Coloured Identity and Coloured Politics in the Western Cape Region of South Africa,” 242, Worden, The Making of Modern South Africa, 68. Gradually but

Relevant Background Information on South Africa

81.

82.

83. 84. 85. 86. 87. 88.

89.

90.

91.

92.

93. 94. 95.

96. 97. 98.

63

surely this limited franchise was whittled down during the apartheid era as further restrictions were imposed by making the wealth and educational conditions higher and higher (Davenport, South Africa, a Modern History, 342, 379–381). Davenport talks in this respect of a “token enfranchisement” (Davenport, South Africa, a Modern History, 392). See also Goldin, “Coloured Identity and Coloured Politics in the Western Cape Region of South Africa,” 245). For an overview of the history of the Indian population’s settlement in South Africa, see inter alia S.H.H. Nadvi, Problems of Safeguarding the Muslim Personal Law in South Africa, working paper submitted to the South African Law Commission, February 1998, 7–14. See also N. Moosa, “The Interim and Final Constitutions and Muslim Personal Law: Implications for South African Muslim Women,” Stellenbosch Law Review 1998, 199. Institute of Indian Languages of South Africa, Constitution, Durban, 1983; Meshtrie, Indian Languages Abroad: 137 Years of Indian Languages in South Africa, 1. Pandya, “The Hindus of South Africa,” 3. Carrim, “Minorities Together and Apart,” 47. Ibid., 47. Cf. Pandya, “The Hindus of South Africa,” 3. Galiguire, “Voices from the Communities,” 12. Grand Apartheid can be opposed to Petty Apartheid which rather refers to the segregationist policies and legislation on a racial basis regarding residence and business location within the cities, access to public amenities, education etc. Worden, The Making of Modern South Africa, 112. The missionaries played their part in the definition of linguistic and cultural tribal distinctions during the first decades of the twentieth century and also “anthropologists and historians identified distinct tribal cultures and traditions in the model of European ethnology and national histories” (ibid.). Manby, “South Africa: Minority Conflict and the Legacy of Minority Rule,” 27; Worden, The Making of Modern South Africa, 112. For an account of the different forces involved in the creation of the Tsonga’s as an ethnic group in South Africa, see Harries, “Exclusion, Classification and Internal Colonialism,” 82–110. For a discussion of the strategy of forced removals and its intrinsic relation to apartheid, see K. Henrard, “The Internally Displaced in South Africa. The Strategy of Forced Removals and Apartheid,” Jura Falconis 1996, 491–522. See also Henrard, “The Internally Displaced in South Africa,” 494–495. It should be mentioned that the distinctive ethnic areas were first called Bantustans, then Homelands, and finally even National States. See also E. Bonthuys, The Legitimacy of Group Rights in the South African Legal System, Master of Laws Paper, University of Stellenbosch, 1993, 127. Harries, “Exclusion, Classification and Internal Colonialism,” 105. See also Chairperson of the Constitutional Assembly, Ex Parte: In Re Certification of the Constitution of the Republic of South Africa 1996, Constitutional Court of South Africa, CCT 23/96, 6 September 1996, 1996 (4) SA 744 (CC), 1996 (10) BCLR 1253 (CC), § 7. Van Diepen, “Introduction,” 8; Van Wyk, “Introduction to the South African Constitution,” 133. Kwazulu, KwaNndbele, KaNgwane, Gazunkulu, Lebowa, and Qwaqwa. The Bantu Homelands Constitution Act of 1971 can be considered “enabling legislation to empower the State President to confer self-government on any of the . . . Territorial Authorities by proclamation” (Davenport, South Africa, a Modern History, 374).

64

99. 100. 101. 102. 103.

104. 105.

106. 107.

108. 109. 110. 111.

112. 113.

114.

Minority Protection in Post–Apartheid South Africa

Manby, “South Africa: Minority Conflict and the Legacy of Minority Rule,” 29. Bennett, Human Rights and African Customary Law, Kenwyn, Juta, 1995, 7. Worden, The Making of Modern South Africa, 110–111. Bonthuys, Group Rights, 128; Worden, The Making of Modern South Africa, 12. For a balanced approach to issues of language and ethnicity, see X, Report of the Commission on the Demarcation/Delimitation of SPRs, Pretoria, 1993, 4, 13. The Commission was asked to make up a report on the demarcation of the territorial subunits of South Africa (states, provinces or regions—thus SPRs). The Commission was instructed to take into account ten criteria that included demographic considerations and cultural and language realities (ibid., 4–5). The Commission makes the following remark on the basis of comparative research regarding language criteria: “It seems that regions should not be ‘gerrymandered’ at the cost of geographical and economic cohesion merely for the sake of language homogeneity. The reorganization of homogeneous language and cultural regions may provide the opportunity for the exploitation of ethnic sentiments, claims and counter claims, and constant new majorities and new minorities. On the other hand, regional boundaries should not cut across the spontaneously formed areas where particular language communities live” (ibid., 13). A.J. Steenkamp, “The South African Constitution of 193 and the Bill of Rights: An Evaluation in Light of International Human Rights Norms,” H.R.Q. 1995, 118. See inter alia H. Giliomee, “The Beginning of Afrikaner Ethnic Consciousness” in L. Vail (ed.), The Creation of Tribalism in Southern Africa, Berkeley, University of California Press, 1989, 21. Ibid., 27. See also E.G. Malherbe, Education in South Africa, II: 1923–1975, 1977, 39 who underlines that school medium has been a controversial issue in South Africa during several decades. Ibid. See also L. Louw & F. Kendall, South Africa. The Solution, Ciskei, Amagi, 1987, 23. Pelzer, The Broederbond, 5. Pelzer, The Broederbond, 6; Worden, The Making of Modern South Africa, 25–26. See inter alia a newsbrief of 4 August 1998 in which is underlined that “Afrikaners, many of whom still call themselves Boers, to this day deeply resent the way the British mistreated Boer women and children they rounded up and held in concentration camps” (X, “Reconciliation is focus of Anglo-Boer Celebrations: Minister,” www.anc.org.za/cgi-bin/shownews, 4 August 1998). Worden, The Making of Modern South Africa, 29. Davenport, South Africa, A Modern History, 231. See also I. Currie, “Official Languages” in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, Kenwyn, Juta, loose-leaf, 37.1. Department of Arts, Culture, Science, and Technology (DACST), A Language Plan for South Africa. Preparing for a Multilingual Future (first draft), Pretoria, DACST, August 1997, 6; Currie, “Official Languages,” 37.1. It should be emphasized, however, that under the Bantustan policy, certain African languages did have official status in the homelands, especially the four independent ones (inter alia Currie, “Official Languages,” 37.6–37.7 and for an enumeration of the relevant legislation and presidential proclamations see W. Seroti, “Can a Provincial Legislature use Only One Official Language,” De Rebus 1995, 47).

Relevant Background Information on South Africa

65

115. Prozesky, “Religious Justice at Last? Believers and the New Constitution in South Africa,” 11. 116. Moosa, “The Interim and Final Constitution and Muslim Personal Law: Implications for South African Muslim Women,” 199; Prozesky “Religious Justice at Last? Believers and the New Constitution in South Africa,” 14. 117. Prozesky, “Religious Justice at Last? Believers and the New Constitution in South Africa,” 14. 118. Ibid. See also Davenport, South Africa, a Modern History, 537. 119. Prozesky, “Religious Justice at Last? Believers and the New Constitution in South Africa,” 15. 120. See inter alia Malherbe, Education in South Africa, 197, 103; L. Schlemmer, “Education and Culture: Prospects for Progress and Peace in South Africa” in H. Kotze (ed.), A Future South Africa? Prospects for 1999 and Beyond, Stellenbosch, Centre for International and Comparative Politics, 1999, 149. 121. Justice Sachs (Constitutional Court) in Lawrence v The State and Another, Negal v The State and Another, Solberg v The State and Another, 6 October 1997, CCT 38-40/96, 1997 (4) SA 117§ (CC), 1997 (10) BCLR 1348 (CC), § 149. See also R.B. Nicholson, “Ethnic Nationalism and Religious Exclusivism,” Politikon 1994, 54. 122. Sachs, Advancing Human Rights in South Africa, 83. 123. Lawrence v S, CC, § 152. 124. De Nederduits Gereformeerde Kerk was further subdivided in four racial churches, the Nederduits Gereformeerde Kerk for the White population, the Nederduits Gereformeerde Sending Kerk for the Colored population, the Nederduits Gereformeerde Indier Kerk for the Indian population, and the Nederduits Gereformeerde Bantu Kerk for the African population. 125. Davenport, South Africa, a Modern History, 537–538, Nicholson, “Ethnic Nationalism and Religious Exclusivism,” 57. 126. Relevant legislation includes the 1953 Bantu Education Act; the 1963 Coloured Persons Education Act, the 1965 Indian Education Act, and the 1967 National Education Policy Act representing the legislation for the African, Colored, Indian, and White population respectively. 127. See also J. Stonier, “Intercultural Education in South Africa” in K. Cushner & P. Gagliardi (eds), International Perspectives on Intercultural Education, to be published but on file with the author, 2–3. 128. Davenport, South Africa, a Modern History, 535. See also E. Dube, “The Relationship between Racism and Education in South Africa,” Harvard Educational Review 1985, 93–97. 129. Davenport, South Africa, a Modern History, 535. 130. Currie, “Official Languages,” 37.1–37.2. See also Z. Desei & N. Taylor, “Language and Education in South Africa,” World YearBook of Education, London, Kogan Page, 1997, 169. 131. K. Heugh, “From Unequal Education to the Real Thing” in K. Heugh et al. (eds.), Multilingual Education for South Africa, Johannesburg, Heinemann, 1995, 42. Cf. M. King & O. Van Den Berg, One Nation, Many Languages. What Policy for Schools? Pietermaritzburg, Centaur Publications, 1992, 4. 132. Heugh, “From Unequal Education to the Real Thing,” 43; King & Van Den Berg, One Nation, Many Languages, 6. For a description of the various steps regarding

66

133.

134. 135.

136.

137. 138. 139.

140. 141.

142. 143.

144.

145. 146.

Minority Protection in Post–Apartheid South Africa

language in education before the fifty/fifty policy, see Desei & Taylor, “Language and Education in South Africa,” 169. This problem was recognized by the Department of National Education in 1992. See National Department of Education, Onderwysvernuwingsstrategie. Bestuursoplossings vir Onderwys in Suid Afrika, Pretoria, National Department of Education, 1992, 8. Heugh, “From Unequal Education to the Real Thing,” 43. Ibid.; King & Van Den Berg, One Nation, Many Languages, 8. See also Dube, “The Relationship between Racism and Education in South Africa,” 96–97; Stonier, “Intercultural Education in South Africa,” 18. The Soweto uprisings indeed triggered more general resistance campaigns. See Davenport, South Africa, a Modern History, 392. Dube, “The Relationship between Racism and Education in South Africa,” 87; Heugh, “From Unequal Education to the Real Thing,” 42; Malherbe, Education in South Africa, 101, 145. Groups had been accorded a central position in Christian National Education since the 1870s. See Davenport, South Africa, a Modern History, 536. Malherbe, Education in South Africa, 3, 147. J.L. Beckman, “Religion in the Schools: Some Implications of a New Constitution,” South African Journal of Education 1995, 97. Christie refers in this respect to “the initiative taken by private schools (since the mid ‘70s), spearheaded by Catholic Schools, to oppose apartheid by admitting students of all races to previously segregated schools” (P. Christie, “Desegregating Schools in South Africa: the Case of the Catholic ‘Open’ Schools,” Discourse October 1989, 87). Lemon argues that only in 1986 were state subsidies extended to all pupils in these schools (A. Lemon, “Desegregation and Privatisation in White South African Schools: 1990–1992,” Journal of Contemporary African Studies 1994, 201–202). C. Soudien, “Dealing with Race: Laying Down Patterns for Multiculturalism in South Africa,” Interchange 1994, 283. N. Carrim, “From ‘Race’ to Ethnicity: Shifts in the Educational Discourses of South Africa and Britain in the 1990s,” Compare 1995, 18. See also N. Carrim & Y. Sayed, “Pay As You Learn”, WIP September 1992, 28; Lemon, “Desegregation and Privatisation in White South African Schools: 1990–1992,” 203; Stonier, “Intercultural Education in South Africa,” 19–20. Carrim, “From ‘Race’ to Ethnicity: Shifts in the Educational Discourses of South Africa and Britain in the 1990s,” 18. Lemon, “Desegregation and Privatisation in White South African Schools: 1990–1992,” 217; Soudien, “Dealing With Race: Laying Down Patterns for Multiculturalism in South Africa,” 283–284. Inter alia Carrim & Sayed, “Pay As You Learn,” 28–29; Fataar, “Access to Schooling in a Post-Apartheid South Africa: Linking Concepts to Contexts,” 71; G. Kruss, “Educational Restructuring in South Africa at Provincial Level: the Case of the Western Cape” in P. Kallaway et al. (eds.), Education after Apartheid. South African Education in Transition, Cape Town, UCT, 1997, 88; Lemon, “Desegregation and Privatisation in White South African Schools: 1990–1992,” 219. Bennett, Human Rights and African Customary Law, 19. South African Law Commission (SALC), The Harmonisation of the Common Law and the Indigenous Law: Conflicts of Law, Discussion Paper 76 of Project 90, April 1998, Pretoria, SALC, 5.

Relevant Background Information on South Africa

67

147. Bennett, Human Rights and African Customary Law, 19. Cf. SALC, The Harmonisation of the Common Law and the Indigenous Law: Conflicts of Law, 6–10. 148. P.K. Rakate, “The Status of Traditional Courts under the Final Constitution,” C.I.L.S.A. 1997, 183. 149. SALC, The Harmonisation of the Common Law and the Indigenous Law: Conflicts of Law,10. See also Bennett, Human Rights and African Customary Law, footnote 71. 150. SALC, The Harmonisation of the Common Law and the Indigenous Law: Conflicts of Law, 12. 151. Act No 34 of 1986. 152. SALC, The Harmonisation of the Common Law and the Indigenous Law: Conflicts of Law, 13. Cf. Bennett, Human Rights and African Customary Law, 19. 153. SALC, The Harmonisation of the Common Law and the Indigenous Law: Conflicts of Law, 37, 41. 154. Bennett, Human Rights and African Customary Law, 60–63; J.Y. De Koker, “Die Status van die Inheemse Reg in die Suid-Afrikaanse Regsysteem na 27 April 1994,” T.R.W. 1996, 112, 120; Chief Directorate of Constitutional Affairs, Development and Transformation of Policy Matters on Traditional Leadership: Evaluation and Summation of Discussions with Academics and Experts—Discussion Document, Pretoria, Chief Directorate of Constitutional Affairs, August 1996, 25–26. 155. Bennett, Human Rights and African Customary Law, 69; CONTRALESA, Submission to the Constitutional Assembly on the constitutional role of traditional leaders, 6; Harries, “Exclusion, Classification and Internal Colonialism: the Emergence of Ethnicity among the Tsonga-speakers of South Africa,”103. A case which confirms this discretionary power of the apartheid government to meddle with the institution of traditional leadership is Buthelezi v Minister of Bantu Education, 1961 (4) SA 835 A. 156. Inter alia C. French, Functions and Powers of Traditional Leaders (Occasional Papers), Johannesburg, Konrad Adenouer Stiftung, September 1994, 26. 157. Worden, The Making of Modern South Africa, 102. 158. Bennett, Human Rights and African Customary Law, 70. 159. Vorster, “Chiefs in a Future South Africa,” 16. 160. C. Mzala, “Revolutionary Theory on the National Question in South Africa” in M. Van Diepen (ed.), The National Question in South Africa, London, Zed, 1988, 39. 161. On 9 March 1947, the Joint Declaration of Co-operation, entitled United against Apartheid, was signed, which established cooperation between the national organizations of oppressed masses, namely the Coloreds, Indians, and Blacks. 162. ANC, Nation-Formation and Nation-Building. The National Question in South Africa, [www.anc.org.za/ancdocs/discussion/nation.html], 4. 163. Ibid., 5. 164. Giliomee argues, however, that “the ANC, as party most strongly espousing non-racialism, is in fact a racial party depending on Africans for 94 percent of its support” (H. Giliomee, “A Political Incorrect View of Non-Racialism and Majority Rule” in W. James (ed.), Now That We Are Free: Coloured Communities in a Democratic South Africa, Johannesburg, IDASA, 1996, 96). This arguably rather points to a certain pattern of racial voting than to a party effectively representing a racially inspired programme. 165. Giliomee, “A Political Incorrect View of Non-Racialism and Majority Rule,” 96 where he mentions that the often used slogan in this respect is “unity in diversity.”

68

Minority Protection in Post–Apartheid South Africa

166. Worden refers in this regard to a series of developments between 1979 and 1984 that collectively amounted to the policy known as “total strategy,” and he mentions the changes regarding segregation in education, the removal of many petty apartheid restrictions like segregation of public amenities, and also the 1983 Constitution (Worden, The Making of Modern South Africa, 122–124). See also H. Klug “Historical Background” in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, Kenwyn, Juta, loose-leaf, 2.10–2.12. 167. Manby mentions regarding Grand Apartheid that “[i]n practice, the homeland system was impossible to implement fully. The designation of ethnic groups and the areas for their occupation was often arbitrary and illogical; thousands were allocated to homelands with which they had no real connection. Although hundreds of thousands of black South Africans were forcibly uprooted from their homes and deported to the barren rural areas, millions remained legally or illegally resident in white South Africa, despite the constant threat of “deportation.” After more than three million people had been internally displaced, the government conceded that black South Africans would remain a reality. Mass forced removals were ceased by the mid-1980s” (Manby, “South Africa: Minority Conflict and the Legacy of Minority Rule,” 29). 168. Regarding segregated education reference can be made to the 1981 De Lange report on Education which advised that multiracial private schools should be allowed. See also Worden, The Making of Modern South Africa, 124. 169. Inter alia Davenport, South Africa, a Modern History, 520. 170. Van Wyk, “Introduction to the South African Constitution,” 135. 171. Ibid. 172. For a relatively detailed description, see Davenport, South Africa, a Modern History, 434. 173. Worden, The Making of Modern South Africa, 124. 174. Van Wyk, “Introduction to the South African Constitution,” 135. 175. Davenport, South Africa, a Modern History, 438–442; Van Wyk, “Introduction to the South African Constitution,” 135. 176. M. Lobban, “Un Accord Négocié: Le Processus Constitutionnel en Afrique du Sud depuis 1991, Revue de Droit Public 1997, 74. In this respect it can also be mentioned that the government instructed the South African Law Commission in 1986 to launch an investigation into group and human rights (see Van Wyk, “Introduction to the South African Constitution,” 136). 177. Davenport, South Africa, a Modern History, 520. 178. Lobban, “Un Accord Négocié: le Processus Constitutionnel en Afrique du Sud depuis 1991,” 73. See also N. Ismail and C.J.J. Mphaisha, “The Final Constitution of South Africa: Local Government Provision and their Implications,” Occasional Papers January 1997, 8. 179. Inter alia W. De Klerk, “The Process of Political Negotiation: 1990–1993” in B. De Villiers (ed.), Birth of a Constitution, Kenwyn, Juta, 1994, 1, 4–6; Manby, “South Africa: Minority Conflict and the Legacy of Minority Rule,” 35.

3

South Africa’s 1993 or Interim Constitution: Constitutional Negotiations and Brief Analysis in Terms of Minority Protection

INTRODUCTION TO THE OVERALL CONSTITUTIONAL NEGOTIATIONS PROCESS In order to evaluate the way in which post-apartheid South Africa deals with and accommodates its population diversity, a discussion is required of the constitutional negotiation process pertaining to issues of relevance for minority protection. It was pointed out in this respect that “[t]he two constitutional texts, the thirty-four Constitutional Principles and the judgements of the Constitutional Court are all important in understanding the new constitutional framework and thinking behind the mechanisms for the protection of minority rights and interests.”1 This introduction includes an overview of the relevant matters that are analyzed. Both the particular historical and political circumstances of South Africa and the special relevance of minority protection concerns influence the relative attention given to the distinctive issues. Furthermore, a certain indication is given of the categorization of the corresponding provisions as a human right, a minority right, or a manifestation of the right to self-determination. In this respect the theoretical analysis in the first chapter is relied upon. The most relevant human right, from a general minority protection angle as well as from a post-apartheid one, is the equality principle in its different

70

Minority Protection in Post–Apartheid South Africa

manifestations. The provisions on freedom of religion and education are extensively dealt with, while other human rights provisions are treated briefly because of the high degree of similarity with the corresponding international human rights provisions. The extensive machinery of institutions that is aimed at the effective protection of human rights is also mentioned as this institutional backup is relevant for vulnerable communities/population groups. Finally, the extent to which international law is allowed or even required to be taken into account when interpreting the Bill of Rights cannot be neglected. This is especially relevant for those provisions of the Bill of Rights that have counterparts in positive international (human rights) law. The discussions about and the “explicit” provisions of minority rights/rights for communities are given appropriate attention.2 Indigenous peoples as such are not focused upon but the debates and provisions that deal with the accommodation of customary law and of the institution of traditional leaders are treated and analyzed in terms of minority protection/accommodation of population diversity. Finally, debates and compromises regarding the right to self-determination are extensively reviewed. In view of the broad scope of the right to internal selfdetermination, several mechanisms and techniques will be highlighted as representing manifestations of self-determination. These more or less hidden aspects of the right to self-determination in the South African constitution include several limitations on majority rule, regulations aimed at multiculturalism, and the federalist features inherent in the devolution of competencies to levels of government closer to the people. These techniques tend to enable the different population segments of a state to live their lives according to their own values and customs. Prior to an explanation of the process after De Klerk’s speech of 2 February 1990, certain remarks are made about reports of the South African Law Commission that were commissioned by the NP government. The eventual reports were released during the preparatory stages for, and even during, the official negotiations themselves and influenced the debates.3 The subjects chosen by the NP government proved very sensitive during the negotiations because of the apartheid legacy. It is in any event important to underscore that the reports of the South African Law Commission are not reflections of the government’s ideas at that time. A first important research report was requested by the Minister of Justice in April 1986 and dealt with the issue of “how group rights could be defined and protected and individual rights extended under the South African constitution.”4 In its final report on Group and Human Rights, the South African Law Commission concludes that “[t]he interests which come into the picture in a bill of rights and which are protected need never be protected as ‘group rights’. All the collective values—such as language, religion and culture—that may come into the picture in a bill of rights can be protected as individual rights.”5 The Commission also underlines the sensitivity of classifying people on the basis of race or ethnicity, and it highlights that it is not possible to have a system of minority rights without classifying exactly in that way.6 The preference does clearly go to

South Africa’s 1993 or Interim Constitution

71

individual human rights. Importantly, however, the Commission also refers to other, broader avenues for dealing with minority/community interests, including issues of form of state7 and other factors discussed in its subsequent report on constitutional models.8 The second report, the one on Constitutional Models for South Africa, covers a great many issues and is consequently very voluminous.9 There is a rather extensive coverage of the form of state, but there are also discussions concerning the appropriate language policy, the Bill of Rights, and even group and minority protection. Regarding the form of state for the future South Africa, the report contains some interesting remarks. The Commission argues firmly against regionalism based on ethnic divisions,10 which is ostensibly related to the legacy of the Grand Apartheid scheme. Another reference to the sensitivity of ethnicity and ethnic classifications can be found in the Commission’s warning that the constitution should not rigidify ethnic groupings as such.11 The Commission expresses a clear preference for systems of power sharing as a measure conducive to protect minorities.12 In this regard it is in favor of a strong regionalism or even federalism because “federalism is, so far as individual and minority interests are concerned, a better option than a unitary state without regionalism since it divides power and gives individuals and minorities security within a system which they feel to be their own.”13 The Commission is also in favor of protecting political parties and their participation in decision making rather than ethnic groups as such,14 which can be considered an indirect reference to the advisability of certain regulations to ensure a coalition government. Both reports thus recognize the need for minority protection within a democratic framework, reject group rights, and underline the importance of a Bill of Rights in this regard as well as mechanisms of power sharing. The latter is relevant for the form of state but also for the possible prescription of a coalition government. SOME PRELIMINARY REMARKS REGARDING THE CONSTITUTIONAL NEGOTIATION PROCESS LEADING UP TO THE INTERIM CONSTITUTION President F.W. de Klerk’s speech on 2 February 1990 can be described as the springboard for the subsequent dramatic changes in South Africa. It held the promise of the democratization of the state system, the normalization of political processes, and the negotiation process for a new Constitution.15 In view of the distinctive features of the apartheid regime, (inter alia16) the following were bound to become more or less sensitive issues during the negotiation process: the exact formulation of the equality principle, the question of group rights or other special rights for minorities/communities, the status of the numerous languages spoken in South Africa, the issue of education, the form of state, and also but to a lesser extent the accommodation of customary law and Muslim personal law in addition to other aspects related to the accommodation of religious diversity.

72

Minority Protection in Post–Apartheid South Africa

Several negotiation rounds in the process to develop an interim Constitution can be distinguished, namely CODESA (Convention for a Democratic South Africa) I and II and eventually the MPNP (the Multi-Party Negotiation Process). The analysis will focus on substantive discussions, the walkouts of certain parties, and the attempts to include them again as these events were mainly related to concerns of minority protection and accommodation of population diversity. The respective mandates of the working groups and technical committees of the respective negotiation rounds give a good overview of the critical issues.17 The five working groups of CODESA were instructed to deal with the following matters: the creation of a climate for free and equal participation in the political process, Constitutional Principles and the process of constitution writing, transitional measures, the future of the four independent homelands or TBVC states, (TRANSKEI, BOPHUTATJWANA, VENDA, CISKEI), and time frames. The seven technical committees of the subsequent MPNP process dealt with violence, fundamental rights during the transition, the repeal or amendment of apartheid legislation impeding free political activity and discriminatory legislation, constitutional affairs, and the four organs meant to facilitate the transition period, including the Transitional Executive Council.18 An important issue for all sides of the negotiation process was the process envisaged for achieving a constitution to govern the post-apartheid, democratic South African state. The need for some kind of transitional period and related mechanisms was obvious to everyone but there was strong disagreement about whether it would be a one- or a two-stage process. For the NP government it was important to be able to secure certain protections in the future and limit the damage of giving up power.19 For the ANC it was crucial that “the Constitutional Assembly should be bound as little as possible by the non-elected negotiating forum.”20 Consequently, the NP was in favor of a one-stage process in that the negotiating parties at CODESA would draft the Constitution. This would have ensured an important voice for the NP in the formulation of the Constitution. The ANC, however, preferred that an elected body be responsible for the drafting of the so-called “final” Constitution so that it would have full democratic legitimacy.21 The period before the adoption of the latter constitution would then be governed by an interim constitution, drawn up at CODESA.22 During the course of the negotiations at CODESA a two-stage process was accepted with sufficient consensus, and it was a firm point of departure for the MPNP negotiation round.23 The eventual acceptance of this unique process of constitution making entailed a compromise24 and confirmed that compromise politics was one of the forces of the process securing its eventual success.25 In the first stage an interim Constitution would be drafted by the negotiating political parties before any democratic election. That Constitution would govern the country during the period covering the first democratic elections and during the negotiations leading up to the adoption of the so-called final Constitution. “In order to give greater comfort to all parties, it was agreed that the final Constitution could not erode the fundamental values and principles contained in the

South Africa’s 1993 or Interim Constitution

73

interim or 1993 Constitution. Agreement was reached on a series of 34 Constitutional Principles with which the final Constitution had to comply.”26 These 34 Constitutional Principles undeniably imposed constraints on the subsequent negotiation process as they provided the obligatory foundation for the “final” constitution. This also explains why sections 71(1) and (2) of the interim Constitution state that the “final” Constitution will come into effect only when the Constitutional Court has certified that it complied with these Constitutional Principles. It is important to explain briefly the time constraints imposed on the Constitutional Assembly (CA), as this represented an important impulse in the last weeks before the adoption of the final Constitution to break certain deadlocks. Section 73(1), 1993 Constitution stipulates that the CA has to draft and adopt a new constitutional text within two years of the first sitting of the National Assembly (forming, in combination with the Senate, the national legislature). If the required two-thirds majority of all the members of the CA would not be obtained, section 73 sets out alternative mechanisms in detail,27 inter alia implicating a panel of constitutional experts and a referendum regarding the acceptance or rejection of the text as amended under guidance of the panel.28 In case of noncertification by the Constitutional Court a further time constraint of three months was imposed to adopt an amended text.29 It was exactly the fear of a referendum that pushed the NP to compromise on some of the deadlocks in the negotiations. Certain events during the negotiation process require elucidation in order to provide a better understanding of the Constitution’s overall legitimacy. These events had a decisive influence on specific provisions of the 1993 constitution, which can be related to minority protection/the protection and promotion of the country’s population diversity. It is, for example, important that a plebiscite was called among the white population on 17 March 1992 because of growing signs that a substantial number of white voters were displeased about the political developments.30 The outcome of this plebiscite and its outspoken victory in favor of the negotiations31 definitely contributed to the legitimacy of the interim Constitution as it reflected a commitment to fundamental change by the white population. Another sequence of events that deserves to be mentioned is the boycott of the negotiation process by the white right wing and by the Inkatha Freedom Party (Inkatha, IFP).32 Inkatha formed, inter alia with the Conservative Party (CP) the Concerned South Africans Group (COSAG)33 because it felt that it was increasingly disregarded and sidelined.34 In June 1993 the IFP even walked out of the MPNP negotiation round after which the “Freedom Alliance” was formed, with the far-right-wing CP and several other ultra-right-wing white Afrikaner groups.35 Subsequently, several series of concessions were made, chiefly by the ANC, to placate the IFP and the other members of the Freedom Alliance to participate in the elections. As will be discussed in more detail later on, these concessions included granting greater powers for provinces, a provision on a Volksstaat Council, a recognition of the Zulu king, and a Constitutional Principle

74

Minority Protection in Post–Apartheid South Africa

on the right to self-determination.36 Consequently, the ANC had to give a great deal to minorities parties37 in order to secure a successful transition to democracy.38 Obviously, these developments entailed a higher degree of accommodation of population diversity than was predictable in earlier stages of the negotiations. Nevertheless, the need to acknowledge and respect the country’s population diversity was recognized from the start. This was inter alia apparent in the Declaration of Intent setting out the program for the future negotiations at the beginning of the first official round of negotiations.39

EQUALITY IN TERMS OF THE INTERIM CONSTITUTION In view of apartheid’s divide and rule policy, its legacy of group-based discrimination,40 and the exclusion of the nonwhite population from political participation, it is understandable that there was extensive emphasis on equality and the need to redress previous disadvantages, on democracy, and on nation building throughout the negotiations.41 There can be no doubt that the equality principle “lies at the heart of the constitution and pervades it.”42 It should be emphasized that “the Constitution is not neutral as between different conceptions of equality. It subscribes to a particular vision of equality, one which is usually called substantive equality”43 and can be contrasted with mere formal equality. Substantive equality demands a contextual approach, which takes into account differences in circumstances. In this regard, substantive equality allows and even requires remedial measures “geared to redressing both individual and group disadvantage created by a history of oppression and apartheid.”44 Consequently, the principle of affirmative action to redress disadvantages caused by past discrimination in itself was easily agreed upon.45 This agreement as to principle contrasts sharply with the controversy surrounding its implementation.46 Understandably, in view of the history of legally instituted and entrenched discrimination under apartheid, the equality section of the 1993 Constitution contains a non-discrimination clause.47 Equality before the law and equal protection of the law48 are also taken up so that the entire section deals with most aspects of the equality principle as recognized in international law. Regarding the nondiscrimination provision, it should be remarked that indirect discrimination is expressly included,49 which can be related to the pervasive impact of apartheid policies and the desire to prevent any reappearance of these and related policies. In view of the focus of this work, it is appropriate to repeat that nondiscrimination is one of the two pillars of any full-blown system of minority protection. As is reflected in the Constitution’s embodiment of a substantive vision of equality, there is a reasonable recognition of the need to protect and accommodate the country’s population diversity. In view of the devastating effects of apartheid, there is also a strong emphasis on the goal of national unity, but this focus on national unity does not negate the importance of a reasonable accommodation of diversity.50

South Africa’s 1993 or Interim Constitution

75

LANGUAGE AND EDUCATION IN TERMS OF THE INTERIM CONSTITUTION The respective status of the languages spoken in South Africa, the regulation of language in education, and “separate” schools for distinctive population groups proved sensitive issues during the negotiation process, which can once more be related to apartheid’s legacy.51 Several (white) Afrikaners were and still are very concerned about the status of their language, especially in relation to English, which can be explained by the language struggles in the past.52 On the other hand, most parties felt strongly that something should be done about the previously undervalued and neglected African indigenous languages. An attempt to accommodate all sides to the debate resulted in a very extensive and detailed provision on languages. It was no problem for the National Party that there would be eleven official languages as long as Afrikaans was among them.53 The NP did, however, bargain for a non-diminishment provision,54 which would ensure that the rights and status of the pre-1994 official languages were maintained and entrenched,55 so as to prevent the erosion of Afrikaans in favor of English. The other parties could accept such a provision to the extent that it was understood that “it was envisaged that the other nine languages would be developed to the point that all eleven languages enjoyed the same status and rights.”56 Although it was not required that all eleven official languages were treated equally,57 it was agreed that efforts should be made to develop and promote their equal use.58 The possibility of provincial legislatures to declare any of the national official languages as official language(s) of the province59 can be considered as “an attempt to recognize and accommodate the regional concentration of various linguistic groups.”60 Furthermore, provision was made for the establishment of an independent Pan South African Language Board, with a mandate (inter alia) to further the development of the official languages and to promote multi-lingualism in South Africa.61 Education was not as much a cause for deadlock in the negotiations during the CODESA and MPNP rounds as in those preceding the adoption of the 1996 Constitution. Agreement was relatively easily reached on a guarantee for equal access to educational institutions.62 The equalization of educational opportunities is indeed crucial63 in view of apartheid’s policy of separate but unequal education as that had resulted in grossly inferior education for the African population and the concomitant under-qualification of this population group.64 Against the background of enforced mother-tongue education during apartheid, the freedom to choose the medium of instruction65 was very important for the parties representing the previously disadvantaged groups.66 Choice of medium of instruction also remains very important for a large proportion of the Afrikaner population since that would enable them to choose mothertongue instruction, which is felt to be vital to maintain and promote the Afrikaner language and culture. It was clear to everyone that there are certain

76

Minority Protection in Post–Apartheid South Africa

practical constraints to the complete realization of the right to choose the medium of instruction which was thus made dependent on a requirement of “practicability.”67 Finally, certain Afrikaners’ urged to have separate educational institutions conforming to their specific cultural values, and this was also voiced during the negotiations. Insofar as there would be no racial discrimination in such institutions, this was something the ANC could agree to.68 Subsequent events during the negotiations leading up to the final Constitution demonstrated that there were some attempts to circumvent the prohibition of racial discrimination by relying on arguments of culture. This in turn incited resentment69 and burdened the ongoing negotiations on the issue.

MINORITY PROTECTION ISSUES UNDER THE INTERIM CONSTITUTION The constitutional negotiations preceding the enactment of both the 1993 and the 1996 Constitutions also had to deal with the question if how to accommodate and protect ethnic, religious, and linguistic minorities in a democratic state.70 Indeed, from the beginning of the negotiation process the then ruling National Party had made it clear that it would under no circumstances surrender to pure majority rule in that sufficient guarantees for minority protection were needed before they would relinquish power.71 Other parties representing white interests were obviously equally concerned about sufficient guarantees for the well-being of their constituency, but their respective focus was markedly different. The National Party mainly focused on issues of power sharing as it felt that minority interests could best be protected through certain mechanisms of distribution of governmental power.72 Its proposals for a Bill of Rights confirmed that it was not (immediately) asking far-reaching minority rights in that it only demanded, as relevant for minority protection purposes, nondiscrimination guarantees and the individual rights to speak a language and participate in the cultural life of one’s choice.73 This option was probably also influenced by the fact that the most important parties at the negotiations realized all too well that group or group-specific rights catering to minorities would be politically unpalatable.74 In view of the ANC’s commitment to a nonracial society, it rejected strongly any attempt to entrench racial group rights.75 Nevertheless, section 31, 1993 Constitution,76 which effectively provides for a right of everyone to speak the language and participate in the cultural life of one’s personal choice, was very easily passed. The reason for this easy passage was that the guarantees contained in that section were uncontroversial because they avoided any reference to a group or group membership.77 It should, nevertheless, be acknowledged that these rights do have a group-oriented nature,78 as they presuppose other persons speaking that language and/or identifying with that culture.79

South Africa’s 1993 or Interim Constitution

77

THE FORM OF STATE AND RELATED ISSUES OF POWER SHARING IN TERMS OF THE INTERIM CONSTITUTION Already long before the drafting of the Constitution started, it was noticeable that the “form of state” would be contentious during the negotiations.80 The two major players in the whole transition process, the ANC and the NP, had in this regard quasi-diametrically opposite views and two of the more vocal smaller political parties also had strong positions on this matter. Whereas the ANC was in favor of a unitary state with a high degree of centralization, the NP was more in favor of a regional or even a federal state.81 Both the Democratic Party (DP) and the Inkatha Freedom Party (IFP) were staunch proponents of a federal state structure, albeit for different reasons. The ANC’s preference can be explained not only because of its resistance to “federalism” in view of the apartheid connotations but also because a centralized system seemed most suitable to unhindered social and economic change and efficient governance. A unitary state would furthermore counter the centrifugal powers of the Zulu and a certain group of white Afrikaners.82 Whereas the DP was one of the traditional bearers of federalism,83 the National Party’s reason for being in favor of some kind of federalist structure was related more than anything else to its pragmatic attempt to retain some power via mechanisms of power sharing.84 During the NP’s rule in the apartheid era, the party had always aimed at a highly centralized system.85 The IFP’s vigorous propagation of federalism further exacerbated the suspicions on the part of the ANC.86 As long as the IFP participated in the negotiations, it promoted an “extreme form of federalism in which virtually all power would be devolved from the center to the provinces.”87 Its position regarding federalism was clearly related to its politization of Zulu ethnicity and its attempt to secure a form of (minority) protection for the Zulus in Kwazulu-Natal, where that population group is concentrated.88 Federalism is generally considered a technique with positive effects for minority protection. This is even more the case when the federal units correspond to the relative territorial concentrations of the distinctive ethnic groups and when these units get certain culturally related competencies,89 as is (to some extent) the case for South Africa and its provinces.90 The eventual form of state agreed to in the interim Constitution is not clearly either unitary or federal.91 One could speak in this respect about a hybrid state since a wide range of legislative competencies is given to the provinces while the place of the central state still dominates.92 Although there are indeed divergent opinions on the correct qualification of the form of state of South Africa in terms of the 1993 Constitution,93 it is difficult to deny that some federal features are present.94 This can inter alia be deduced from the grant of certain (mainly concurrent) legislative, executive, and fiscal competencies95 to the newly demarcated provinces,96 the freedom for provinces to adopt—under certain conditions—a provincial constitution,97 the representation of the provinces in the second chamber of Parliament (the Senate),98 the fact that in case of conflict of the concurrent

78

Minority Protection in Post–Apartheid South Africa

competencies the override provision is in favor of the provinces,99 and the establishment of a constitutional court.100 Several Constitutional Principles are furthermore relevant to the form of state. Another facet of power sharing was achieved when multiple, intensive bilateral talks between the NP and the ANC resulted in a joint proposal for power sharing and the establishment of a government of national unity for a five-year period after the election of a Constitutional Assembly.101 The Government of National Unity is an example of a coalition government, which is one of the features of a consociational democracy as advocated by Lijphart. This analogy is apposite in view of the fact that South Africa’s voting pattern is to some extent racially determined. The Government of National Unity entailed that each party with at least eighty seats in the National Assembly was entitled to designate a deputy president,102 while every party with at least twenty seats in the National Assembly and which had decided to take part in the government of national unity was entitled to representation in the national Cabinet on a proportional basis.103 In this way, some of the minority political parties had an ensured participation in decision making,104 albeit on a temporary basis of maximum of five years. Constitutional Principle XIV also requires that the final Constitution make provision for the participation of minority political parties in the legislative process, in a “manner consistent with democracy.” THE INTERIM CONSTITUTION REGARDING CUSTOMARY LAW AND RELIGIOUSLY INSPIRED SYSTEMS OF PERSONAL LAW VERSUS THE EQUALITY PRINCIPLE The way in which customary law would be recognized in view of the potential clashes with certain provisions of the Bill of Rights was also an issue that was hotly debated.105 It should be noted that “customary law de facto (if not always de jure) governs the domestic affairs of three quarters of the South African population.”106 In view of the fact that customary law is still so important for a substantial group of South Africans, it can be argued that it should not be done away with in one stroke. Such an approach would probably have severely destabilizing effects on South African society because it would “uproot the lifestyle of traditional communities.”107 The future of customary law in post-apartheid South Africa will to a great extent be influenced by the applicability of the Bill of Rights to customary law or by the respective relation between customary law and the Bill of Rights. The debates in this respect mainly focus on the equality principle and its impact on the intrinsically and all-pervasive patriarchal structure of customary law.108 Several traditional leaders were represented at MPNP, in contrast to the two CODESA negotiation rounds, and they tried initially to exempt customary law completely from the constraints and requirements of the Bill of Rights.109

South Africa’s 1993 or Interim Constitution

79

A complete exemption of customary law was not acceptable for the negotiating parties,110 and the debate then got mixed up with the issue of the horizontal applicability of the Bill of Rights.111 The latter issue concerned the question whether the Bill of Rights would only be directly enforceable against the state and its organs or also against private social institutions and persons. Since in the latter option the Bill of Rights, including the equality principle, would reach customary law relationships, the two matters do overlap. Eventually, “it was agreed that the chapter should operate vertically only, but that provision be made for a seepage to horizontal relationships.”112 As a result, “indigenous law was in large measure kept beyond direct reach of the chapter because of its vertical application.”113 To get a better picture of the way the Bill of Rights “reached” customary law, three sources of customary law should be distinguished: “First, there is a body of Parliamentary and delegated legislation codifying, consolidating or amending rules of customary law. Second, there is a body of customary law contained in the decisions of the Supreme Court and the Black Appeal Courts. Third, there is what could be termed unofficial customary law, an unwritten repertoire of rules and norms rooted in the actual social practice and legal convictions of African communities.”114 Because of its application provision, the Bill of Rights applied directly only to that part of the indigenous law that has been made subject of specific legislative or administrative enactment. The other sources could only be reached indirectly, via the interpretation clause. Section 35(3), 1993 Constitution required courts “interpreting and developing the common law and customary law to have due regard to the spirit, purport and objects of the Bill of Rights,” which thus enabled so-called “seepage” of the Bill of Rights.115 This interpretation method to bring customary law in conformity with the Bill of Rights only seems possible when the rule of customary law at issue is general and its application a matter of judicial discretion.116 Furthermore, there is a provision of the limitation clause that tends to curtail customary law in case of conflict with a right enshrined in the Bill of Rights. Section 33(2)(c), 1993 Constitution states that unless it is provided for in the constitution, “no law, whether a rule of the common law, customary law or legislation, shall limit any right entrenched in this Chapter” (the Bill of Rights).117 The impact of section 31’s right to participate in the culture of one’s choice in this regard was also extensively debated as providing a possible shield against reform of customary law.118 It was even argued that on the basis of section 31 the state would be obliged to recognize customary law and to implement it in its courts of law.119 In view of the crucial place of equality in the Constitution, it is generally concluded that in the end the equality principle of the Bill of Rights is to prevail.120 Bennett makes the interesting point that the several references to customary law in the 1993 Constitution imply that “customary law has clearly been recognized on the same terms as Roman-Dutch common law as part of the South African legal system.”121 Consequently, it appears that “by implicitly recognizing customary law, and at the same time prohibiting gender discrimination, the

80

Minority Protection in Post–Apartheid South Africa

constitution has brought about a head-on confrontation between the two opposed cultures.”122 Although some commentators are quite equivocal in their assessment that customary law is subordinate to the Bill of Rights,123 others do not have a clear vision on how these two bodies of law should relate to one another,124 while still others advocate an approach that tries to do justice to both systems of law in a balanced way.125 In any event, the general perception is that no one in South Africa intends to eradicate customary law completely.126 In this respect it is sometimes argued that the exigencies and specificities of the concrete, local culture should model human rights so as to reduce their conflict potential with customary law.127 This argument takes up the theory about the need to take the specific circumstances into account when devising legal rules regarding the accommodation of population diversity. It also appears to carry the possibility of creating some space for customary law without jeopardizing the rights entrenched in the Bill of Rights. An analogous problem with the compatibility of customary law with the Bill of Rights, and especially its equality clause,128 arises regarding the potential recognition of “systems of personal and family law adhered to by persons professing a particular religion” as provided for in section 14 (3)(a), 1993 Constitution and/or of “the validity of marriages concluded under a system of religious law subject to specified procedures” under section 14 (3)(b), 1993 Constitution.129 A demand for the recognition of Muslim (and also Hindu130) marriages dates back a long time, which is to be understood against the predominance of Christian values in legislation regulating all relevant spheres of life.131 Whereas the recognition of Muslim marriages is at first sight not problematic, the concomitant regulation of these marriages would rely on the broader system of religious law, and it is widely known that Islamic personal law has several features that are contrary to the nondiscrimination provision.132 It is, on the other hand, also conceivable to invoke the prohibition of discrimination in combination with the freedom of religion to argue for the need to recognize Muslim family law.133 However, Sachs, a judge of the Constitutional Court, expresses caution in this respect and emphasizes the importance of balancing the need to accommodate religious diversity with the need to uphold the crucial tenets of the Bill of Rights: [G]reat sensitivity will be required in harmonizing the rules of the shariah and the general principles of the constitution where there should be an overlap. The sovereignty of shariah in matters of faith cannot be questioned. It is quite clear that on questions of religious organizations, attendance at mosque, marriage ceremonies and burial rites, the constitution will not intervene. Yet there might be other areas where for example Muslim women might wish to seek the aid of the courts, just as non Muslim women do, to protect themselves against unjust behavior by husbands, fathers or sons who might be abusive.134

Consequently, in this domain the appropriate parameters of the recognition of systems of personal law according to a particular religion, as well as the recognition of marriages concluded under a system of religious law, appear to be determined by a balancing act. It is important that this balancing act takes into account

South Africa’s 1993 or Interim Constitution

81

the relevant provisions of the Bill of Rights. Once again, the dominant opinion is that the Bill of Rights should prevail as much as possible so that radically divergent practices and rules of these religiously inspired systems of personal law would not be acceptable.135 In respect to the freedom of religion provision in the 1993 Constitution, it should also be mentioned that subsection 2 of section 14 provides that “religious observances may be conducted at state or state-aided institutions . . . provided that such religious observances are conducted on an equitable basis and attendance at them is free and voluntary.” This provision reveals that there is no strict separation between church and state in South Africa and that it “will ensure that prayer and bible reading are not prohibited in public schools and that South Africa will not follow the example of the US.”136 THE INSTITUTION OF TRADITIONAL LEADERSHIP IN TERMS OF THE INTERIM CONSTITUTION A matter closely related to the recognition of customary law is the status of traditional leaders and its hereditary features in the post-apartheid, democratic dispensation. As with customary law, it is generally recognized that the institution of traditional leaders is still relatively widely supported,137 especially in rural areas138 where they fulfill an important government function at local level.139 There is obviously a certain tension between democratic principles, so central to the post-apartheid constitution of South Africa, and the patriarchal, hereditary features of the institution of traditional leadership.140 Nevertheless, it was and is clear that simply abolishing traditional leadership is not an option,141 not only because of the ongoing impact of traditional leaders on the lives of so many South Africans but also because of the wish to have a constitutional dispensation that reflects African values. Consequently, some kind of middle ground that accommodates traditional leadership, while acknowledging the need for the institution to be adapted to the changed sociopolitical environment, is called for.142 There was a chiefly constituency present at the MPNP negotiations and “in return for their political support the traditional leaders were promised that their existing position would be maintained in the future constitution.”143 The different aspects of this constitutional recognition of traditional leadership can be succinctly enumerated as follows: [T]he interim Constitution recognized indigenous law and provided for the retention by indigenous political authorities of their existing administrative powers and functions. A role was provided for traditional leadership at all levels of government. A Constitutional Principle (XIII) was inserted with the aim of protecting the powers and privileges of traditional leaders from dilution in the final constitution.144

This seems very promising, but overall the guarantees obtained in the 1993 Constitution were not that strong. The recognition of existing traditional authorities is, for example, made subject to regulation by legislation.145 Although there

82

Minority Protection in Post–Apartheid South Africa

is a provision guaranteeing ex officio membership for traditional leaders to the corresponding local government,146 the provincial houses and the national council of traditional leaders are mere advisory bodies, with some delaying powers regarding legislation pertaining to traditional authorities, indigenous law, traditions, and customs.147 Their actual influence in that kind of legislation will thus depend on the goodwill of the legislatures. Constitutional Principle148 XIII, dealing with customary law as well as traditional leaders, is furthermore very generally formulated, thus leaving a lot of discretion to the drafters to give the final Constitution concrete shape. Consequently, the role of traditional leaders under the 1993 Constitution appeared to be largely situated at the local government level. In view of the establishment of democratic local government organs there are several calls for some kind of cooperative governance between elected local councilors and traditional leaders, or for some kind of reconciliation between both structures.149 Notwithstanding the flaws indicated above, it cannot be denied that the postapartheid government and administration appear to be aware of the need to accommodate, to a reasonable extent, the institution of traditional leadership. This approach is probably the result of a pragmatic intention to use existing structures at the local government level and a recognition of the need to effectively accommodate South Africa’s population diversity by giving indirect recognition to the distinctive ways of life of the various indigenous communities. Finally, it should also be pointed out that it was due to a minor concession in this regard by both ANC and NP government that the IFP could be persuaded to enter the electoral process. The former parties undertook to “recognize and protect the institution, status and role of the constitutional position of the King of the Zulu and the kingdom of Kwazulu, which . . . shall be provided for in the provincial constitution of Kwazulu Natal.”150 .

THE RIGHT TO SELF-DETERMINATION IN TERMS OF THE INTERIM CONSTITUTION Finally, a matter that deserves special attention is the right to self-determination and the extent to which it is provided for in the interim Constitution. Whereas the parties formulating claims in terms of self-determination focused mainly on secession and thus external self-determination, the answers by the constitutional drafters were mostly in terms of internal self-determination (which coincided with the real wish of one of the parties involved). Claims of self-determination in South Africa are spontaneously related to the demands for a Volksstaat by certain Afrikaners. The origins of such ideas can be found very early on in the 1980s when opposition to any kind of reform in the direction of more inclusive political participation and majority rule was manifested. This rejection subsequently transformed into a claim for an Afrikaner homeland when the end of apartheid loomed. A group of right-wing parties, which united in May 1993 as the Afrikaner Volksfront, demanded self-determination for the

South Africa’s 1993 or Interim Constitution

83

Afrikaner people for which they drew on the international human rights rhetoric. They set out to establish an independent Afrikaner state, which was coined “Volksstaat.”151 These claims recalled on the one hand emotional events of Afrikaner resistance to British imperialism like the Great Trek and the Anglo Boer War and echoed on the other the imposed self-determination of the Grand Apartheid scheme.152 There was also another political grouping that pressed the issue of selfdetermination, namely the IFP, because it felt its aspirations for a federal system with extensive autonomy for the provinces were not met. The more the IFP was convinced that the ANC was not going to agree to give more powers to the provinces, the more it felt drawn to the language of self-determination and more specifically its secession variant.153 This shift in attitude was already reflected in the 1992 Constitution for Kwazulu-Natal as this document resembled a “charter for an independent region”154 and was intended to enlighten and influence the national constitutional negotiation process. Because of their perception that their demands were not (or not adequately) met, both (groups of) parties boycotted the negotiation process and even voiced “dire threats of violent secession and civil war.”155 The ANC (and also the NP Government) made several concessions towards these parties, especially after their walkout of the MPNP process. As to the IFP’s desire for stronger provincial autonomy, greater powers for the provinces were agreed to,156 while Constitutional Principle XII was meant to address right-wing concerns for self-determination.157 Soon after the recommencement of the MPNP, however, right-wing parties made submissions arguing for a right of external self-determination and, more specifically, secession entailing the formation of an independent Afrikaner Volksstaat. The Technical Committee of the MPNP dealing with Constitutional Issues considered these submissions but recommended that the right to self-determination be addressed by a combination of mechanisms, techniques, and guarantees amounting to the internal dimension of the right. These measures included not only the nondiscrimination principle, the recognition and protection of linguistic and cultural diversity, but also the recognition of collective rights of internal selfdetermination in establishing linguistic, cultural, and religious associations158 (as ultimately taken up in CP XII).159 Both sensitive matters, namely stronger powers/more autonomy for the provinces and the Volksstaat issue, remained outstanding until the last moment. In the end the ANC (and the NP government) made further concessions to make the Constitution as inclusive as possible and to persuade all parties to participate in the elections.160 Although the interim Constitution was passed overwhelmingly on 18 November 1993, the political parties mentioned above still rejected it and consequently refused to take part in the elections.161 After several intense discussions, a set of constitutional amendments was agreed to as a last bid to undermine their objections.162 The Constitution of the Republic of South Africa Amendment Act 2 of 1994 provided not only for more extensive provincial legislative and

84

Minority Protection in Post–Apartheid South Africa

revenue-raising powers and for additional restraints on national Parliament’s competence to legislate concurrently with provinces by making the override clause more pro-provinces, but also for a Volksstaat Council and another constitutional principle dealing with the right to self-determination for a community sharing a common “cultural or language heritage.”163 Constitutional Principle XXXIV embodies a qualified recognition of a right to self-determination, which is not limited to the internal dimension of that right.164 It states165 that the “constitutional recognition for a notion of the right of self-determination by any community sharing a common cultural and language heritage, whether in a territorial entity within the Republic or in any other recognised way” (italics added),166 would not be precluded. The Volksstaat Council was meant to “enable proponents of the idea of a Volksstaat to constitutionally pursue the establishment of such a Volksstaat.”167 It should nevertheless be pointed out that the Council’s powers are not that farreaching as it is an advisory body that has powers to gather information and make representations on the Volksstaat issue to the Constitutional Assembly, the body entrusted with the elaboration of the final Constitution.168 As Corder points out, “In the end, then, only tiny groupings on the extreme fringes of the political spectrum persisted in boycotting the election”169 and the Freedom Front was the faction of the Afrikaner Volksfront that effectively registered for the elections. The ANC had made a lot of concessions to minority parties170 and their demands resulted in an enhanced accommodation of South Africa’s population diversity. Nevertheless, the often intense negotiations (as well as the persistence of certain deadlocks during the elaboration of the final Constitution) reveal that there were divergent views on the features of the postapartheid dispensation. Several of the contentious areas can furthermore be seen in terms of conflicting views on how to deal with and accommodate the country’s population diversity without negating the important project of nation building and the foundational values of equality and democracy. EVALUATION OF THE DEGREE TO WHICH THE INTERIM CONSTITUTION ACCOMMODATES SOUTH AFRICA’S POPULATION DIVERSITY WITH DUE ATTENTION TO THE ROLE OF THE CP’S IN THIS REGARD At this point, an overall review of the aspects of the 1993 Constitution that have a direct (or at least obvious) impact on the issue of minority protection and accommodation of South Africa’s population diversity is provided.171 A more detailed review will be given of the 1996 Constitution, which will also include issues pertaining to the rule of law172 and the mechanism and techniques that are intended to have a positive impact on the effectiveness of fundamental rights. In view of the sensitivity that several apartheid mechanisms have brought to bear on issues pertaining to minority protection/accommodation of population diversity,173 the exact ways and methods of how to deal with this important issue

South Africa’s 1993 or Interim Constitution

85

are not straightforward. In any event, these methods have to be sufficiently reconciled with other imperatives of the post-apartheid state. The theoretical chapter of this work underscored how different avenues can be used and actually should be combined to reach an adequate system of minority protection, enabling the distinctive population groups to retain and develop their separate identity. The following assessments of academics studying the relationship between minority protection and the South African 1993 Constitution reveal that although several avenues relevant for minority protection were used, there was/is certainly scope for improvement. Currie is rather negative in his overall assessment of the relationship between the interim Constitution and minority protection, but he tends to adopt a rather restrictive view of the relevant issues. According to him, South Africa’s interim Constitution was an interim Constitution which possessed little more than a bare minimum of minority rights protection. Individuals were protected by the equality and religious freedom rights against official discrimination. Members of minority cultures were free to try to maintain their cultural identity through mechanisms which included the establishment of private schools. Only in the imaginative provisions for the recognition of official languages did the interim Constitution go beyond the minimum by specifically requiring positive action by the state to ensure the maintenance and development of minority languages.174

The last remark implicitly recognizes that measures dealing with the status of languages rather than (exclusively) with the rights of their speakers amount to measures of minority protection for the latter. Currie’s approach can be compared with Corder’s attitude, as the latter also highlights the importance of the several curbs on majority power present in the 1993 Constitution, the following of which he mentions explicitly: the requirement of special majorities and procedures for decision-making in Parliament and the Cabinet; the requirement of a multi-party executive; the existence of the chapter on fundamental rights, the relative illimitability of those rights and the restrictions on declaring a state of emergency leading to suspension of those rights; the constitutional review power of the Constitutional and Supreme Courts; the unalterable nature and content of the Constitutional Principles; and the establishment and powers of the Public Protector, Human Rights Commission and Financial and Fiscal Commission.175

It should also be pointed out that curbs on majority power can be related to the right to internal self-determination. Furthermore, there is the explicit provision on the Volksstaat Council that appears to demonstrate an openness towards minority concerns and self-determination as a means to address them. The importance of this right to (internal) self-determination for South Africa is underlined by Manby, according to whom “[t]he conflict in South Africa illustrates the problems inherent in recognizing group rights to ‘self-determination’ for ethnic minorities in any form.”176

86

Minority Protection in Post–Apartheid South Africa

It can be argued that several sections of the interim Constitution can be used to contribute to minority protection/accommodation of population diversity. Not only the equality section, section 31 and the provision on the Volksstaat Council are relevant in this respect, but also the clauses on the status of the languages spoken in South Africa, the degree of protection given to traditional authorities and customary law, the potential recognition of religious marriages and systems of personal law that are religiously inspired, the (temporary) entrenchment of a Government of National Unity, and the “federal” form of state and concomitant devolution of competencies to lower levels of government.177 Before formulating an overall conclusion concerning the degree to which the 1993 Constitution (has potential to) accommodates South Africa’s population diversity, certain remarks should be made about the Constitutional Principles, especially in view of their quality of “immutable foundation stones”178 for the final Constitution.179 Some of these principles, more specifically those dealing with traditional leadership and the two principles on self-determination, arguably have a typical South African flavor.180 It seems correct to put forward that these Constitutional Principles ensured inter alia that a certain measure of minority protection would be part of the final Constitution.181 The exact content of the Constitutional Principles (CPs) will be further elaborated upon in the analysis of the certification judgements of the Constitutional Court, but it is appropriate to give at this point an indication of the content of those CPs that might have repercussions for minority protection. In view of the central importance of equality for post-apartheid South Africa, several Constitutional Principles deal with equality and include either injunctions to reach (substantive) equality182 or prohibitions of discrimination.183 Constitutional Principle II requires that “all universally accepted fundamental rights, freedoms and civil liberties . . . shall be entrenched . . . in the Constitution,” which guarantees a strong Bill of Rights. Extensive provision is also made to secure provincial autonomy,184 which is conducive to bringing “government closer to the people” but might furthermore be more directly relevant for those population groups who are territorially concentrated at provincial level. Other Constitutional Principles are meant to address issues of population diversity more explicitly. Reference has already been made to CP XIII on traditional leadership and customary law, as well as to CPs XII and XXXIV on self-determination. Constitutional Principle XXX calling for a public service that should be “broadly representative of the South African community,” imposes a transformation process for the civil service so that it would have more women, and more people representing the previously disadvantaged groups.185 Constitutional Principle XI is meant to protect the diversity of language and culture,186 but its formulation is too general to impose any important constraints in this respect on the Constitutional Assembly as “[i]t does not allow for an interpretation that is conclusive enough to place a positive duty on the state to create the conditions necessary for the promotion of different cultures and languages.”187 Furthermore, Constitutional Principle III underscores the crucial importance of the promotion of national unity.

South Africa’s 1993 or Interim Constitution

87

An overall assessment of the 1993 Constitution and its contribution to the accommodation of South Africa’s population diversity and minority protection, reveals that South Africa’s interim Constitution addresses this matter through a combination of measures and a central commitment to substantive equality. The Constitution not only provides for several human rights specifically relevant for (members of) minorities, it is also geared to bringing government closer to the people by the devolution of competencies to lower levels of government.188 Furthermore, there are several provisions, like those pertaining to the possible recognition of religious marriages, to traditional leadership and customary law, and to the Volksstaat Council, that can be related to minority rights as well as the right to self-determination (in its internal dimension). South Africa’s interim Constitution thus seems to acknowledge, at least to a certain extent, the interrelation between individual human rights, minority rights, and the right to self-determination to achieve an adequate minority protection/accommodation of population diversity. THE FIRST INCLUSIVE ELECTIONS AND THE WAY AHEAD The first democratic elections of South Africa, 27 April 1994, resulted in a landslide victory for the ANC with 62.6 percent of the national vote. This result was good for future transformation, constitution making, and nation building as it confirmed the ANC’s enormous support base, while not giving it the 67 percent that would have enabled it to formulate the final Constitution without consideration for the interest and demands of the other parties, provided that the Constitutional Principles were complied with.189 The two other parties with more than 10 percent and thus able to participate in the government of national unity, were the NP with 20.4 percent and the IFP with 10.5 percent.190 As both parties agreed to participate in the GNU, this resulted, in accordance with the stipulations of section 88, 1993 Constitution in the allocation of eighteen cabinet portfolios to the ANC, six to the NP, and three to the IFP.191 The separate provincial ballot resulted in seven out of nine provinces being ANC dominated. The Western Cape (with its relative concentration of Coloreds and white Afrikaners) emerged as a regional stronghold for the NP (53.2 percent), while the IFP had an even more narrow majority of 50.3 percent in Kwazulu-Natal, with its relative concentrations of Zulu. The IFP’s provincial majority still contrasts sharply with its 10.5 percent on national basis. As the 1993 Constitution also stipulated that all parties holding at least 10 percent of the seats in a provincial legislature would be entitled to a proportionate number of the provincial executive council portfolios192 and the ANC fulfilled this requirement in both provinces,193 it was part of both governments of provincial unity. Nevertheless these two provinces, and only they, attempted to adopt provincial constitutions. The respective provisions of these documents reflect the concerns of the population groups concentrated there and also of the specific political party dominating the provincial scene.

88

Minority Protection in Post–Apartheid South Africa

The Freedom Front exercised its constitutional right to elect a twenty-member Volksstaat Council194 in May 1994.195 The Council was effectively established by the Volksstaat Council Act, No 30 of 1994 and has subsequently submitted several (interim) reports to the Constitutional Assembly, some of which provoked mainly negative reactions during the negotiations leading up to the 1996 Constitution.196 NOTES 1. H. Strydom, “Minority Rights Issues in Post-Apartheid South Africa,” Loyola of Los Angeles International & Comparative Law Journal 1998, 881. 2. In view of the reality of a degree of racial voting in South Africa, the regulations providing for the inclusion of minority parties in government and parliamentary proceedings are also relevant for purposes of accommodation of population diversity and minority protection. The political participation of all the distinctive population groups would be facilitated via these provisions, but this will also be determined by the degree to which the various population groups choose to mobilize behind the banner of a political party. Due to the indirect nature of this protection, I will mostly deal with this issue in footnote. 3. Project 77 on Constitutional Models was finalized in October 1991, while the Final Report of Project 58 on Group and Human Rights dates from October 1994. The Interim Report dates from August 1991. 4. T.R.H. Davenport, South Africa, A Modern History, 436. See also M. Lobban, “Un Accord Négocié: Le Processus Constitutionnel en Afrique du Sud depuis 1991,” Revue de Droit Public 1997, 73–74; D. Van Wyk, “Introduction to the South African Constitution” in D. Van Wyk et al. (eds.), Rights and Constitutionalism: The New South African Legal Order, Kenwyn, Juta, 1994, 136. 5. South African Law Commission, Final Report on Group and Human Rights, Pretoria, SALC, 1994, 210. See also Davenport, South Africa. A Modern History, 436. 6. South African Law Commission, Final Report on Group and Human Rights, 210. 7. The expression “form of state” is used to denote the federal versus decentralized versus unitary features of a state. 8. South African Law Commission, Final Report on Group and Human Rights, 210. 9. The report consists of three volumes of each about 420 pages. Cf. Lobban, “Un Accord Négocié: Le Processus Constitutionnel en Afrique du Sud depuis 1991,” 75. 10. SALC, Report on Constitutional Models, Pretoria, SALC, 1991, 65. 11. Ibid., 85. 12. Cf. Lobban, “Un Accord Négocié: Le Processus Constitutionnel en Afrique du Sud depuis 1991,” 75. 13. SALC, Report on Constitutional Models, 66 and also 88–89. See also Lobban, “Un Accord Négocié: Le Processus Constitutionnel en Afrique du Sud depuis 1991,” 76. 14. SALC, Report on Constitutional Models, 85. 15. W. De Klerk, “The Process of Political Negotiation: 1990–1993” in B. De Villiers (ed.), Birth of a Constitution, Kenwyn, Juta, 1994, 6. See also F. Venter, “Milestones in the Evolution of the New South African Constitution and Some of its Salient Features,” SA Public Law 1994, 211.

South Africa’s 1993 or Interim Constitution

89

16. The right to property and its protection under the Constitution versus the possibilities for redistribution of land as a means to address the legacies of apartheid was, understandably, also a “hot” issue. The entire regulation of labor relations proved to be contentious and divisive as well. 17. According to Van Wyk, and this was confirmed by the development of the negotiation process, “[t]he Constitution turns around seven critical areas: the Constitutional Principles, fundamental rights and their enforcement, structures of government (form of state issues), intergovernmental relations, finance, the transitional provisions, and the adoption of the new Constitution” (Van Wyk, “Introduction to the South African Constitution,” 159). 18. Inter alia W. De Klerk, “Process of Political Negotiations: 1990–1993,” 7; Van Wyk, “Introduction to the South African Constitution,” 139, 142. 19. In the words of the Constitutional Court: “[t]he government and other minority groups were prepared to relinquish power to the majority but were determined to have a hand in drawing the framework for the future governance of the country” (First Certification Judgement of the National Constitution, § 12). 20. B. De Villiers, “The Constitutional Principles: Content and Significance” in B. De Villiers (ed.), Birth of a Constitution, Kenwyn, Juta, 1994, 38. 21. H. Coveliers & M. Veys, “De Zuid-Afrikaanse Grondwet van 1996,” T.B.P. 1998, 236. 22. Van Wyk, “Introduction to the South African Constitution,” 143. For a slightly different formulation of the difference of opinion between government and the ANC (and their respective allies) see Corder, “Towards a South African Constitution,” 498. 23. Inter alia Corder, “Towards a South African Constitution,” 500; Van Wyk, “Introduction to the South African Constitution,” 143. The Record of Understanding (between the ANC and the government) of 26 September 1992, which got the negotiations back on track after the break down of CODESA II, stated in its second paragraph the principle of a democratically elected constitution-making body. 24. G. Erasmus & J. De Waal, “Die Finale Grondwet: Legitimiteit en Ontstaan,” Stellenbosch Law Review 1997, 40–41. 25. De Klerk, “The Process of Political Negotiation: 1990–1993,” 10. For an analysis and assessment of the overall legitimacy of the 1996 Constitution, see inter alia Erasmus & De Waal, “Die Finale Grondwet: Legitimiteit en Ontstaan,” 43–44. 26. M. Chaskalson & D. Davis, “Cases and Comments: Constitutionalism, the Rule of Law, and the First Certification Judgement: Ex Parte Chairperson of the Constitutional Assembly in Re: Certification of the Constitution of the Republic of South Africa 1996, 1996 (4) SA 744 (CC),” South African Journal on Human Rights 1997, 430. Cf. Corder, “Towards a South African Constitution,” 491; Coveliers & Veys, “De Zuid-Afrikaanse Grondwet van 1996,” 237; A.J.H. Henderson, “Cry the Beloved Constitution? Constitutional Amendment, the Vanished Imperative of the Constitutional Principles and the Controlling Values of Section 1,” South African Law Journal 1997, 543; Lobban, “Un Accord Négocié: Le Processus Constitutionnel en Afrique du Sud depuis 1991,” 81; Van Wyk, “Introduction to the South African Constitution,” 159 160. See also Chairperson of the Constitutional Assembly, Ex Parte: In Re Certification of the Constitution of the Republic of South Africa 1996, Constitutional Court of South Africa, CCT 23/96, 6 September 1996, 1996 (4) SA 744 (CC), 1996 (10) BCLR 1253 (CC), § 13.

90

Minority Protection in Post–Apartheid South Africa

27. Chairperson of the Constitutional Assembly, Ex Parte: In Re Certification of the Constitution, 1996, CCT 23/96, 6 September 1996, 1996 (4) SA 744 (CC), 1996 (10) BCLR 1253 (CC), § 16. Cf. Venter, “Milestones in the Evolution of the New South African Constitution and Some of its Salient Features,” 214–215. 28. Section 73(3)–73(8), 1993 Constitution, as amended by the Constitution of the Republic of South Africa Third Amendment Act, No 25 of 1996, section 1. See also Van Wyk, “Introduction to the South African Constitution,” 169–170. 29. Section 73, 1993 Constitution as amended by the Constitution of the Republic of South Africa Third Amendment Act, No 26 of 1996, section 2. 30. Van Wyk, “Introduction to the South African Constitution,” 139. 31. The referendum resulted in a 65 percent affirmative vote (De Klerk, “The Process of Political Negotiation: 1990–1993,” 7). 32. See Corder, “Towards a South African Constitution,” 503; B. Oomen, “Group Rights in Post-Apartheid South Africa: The Case of the Traditional Leaders,” paper presented at IUAES Conference 26 July–1 August 1998 in Williamsburg, unpublished but on file with the author, 6; Venter, “Milestones in the Evolution of the new South African Constitution and Some of its Salient Features,” 213. 33. Corder, “Towards a South African Constitution,” 500; Van Wyk, “Introduction to the South African Constitution,” 140. 34. Van Wyk, “Introduction to the South African Constitution,” 140. 35. Corder, “Towards a South African Constitution,” 503. 36. For an excellent overview of these developments, see H. Corder, “Towards a South African Constitution,” 503–505. 37. Lobban, “Un Accord Négocié: le Processus Constitutionnel en Afrique du Sud Depuis 1991,” 72. 38. De Klerk, “The Process of Political Negotiations: 1990–1993,” 10. 39. One of the goals mentioned in the Declaration of Intent is “that the diversity of languages, cultures and religions of the people of South Africa shall be acknowledged.” Cf. Corder, “Towards a South African Constitution,” 497. 40. I. Currie, “The Future of Customary Law: Lessons from the Lobola Debate,” Acta Juridica 1994, 154; Oomen, “Group Rights in Post-Apartheid South Africa: the Case of Traditional Leaders,” 1. 41. Preamble of the 1993 Constitution. Cf. J. Kentridge, “Equality” in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, loose-leaf, 14.1; J. De Waal, “Equality” in J. De Waal et al. (eds.), The Bill of Rights Handbook 1998, Kenwyn, Juta, 1998, 153; Van Wyk, “Introduction to the South African Constitution,” 158. 42. Fraser v The Children’s Court and Others, Constitutional Court of South Africa, CCT 31/, 5 February 1997, 1997 (2) SA 261 (CC), 1997 (2) BCLR 153 (CC), § 20. 43. Kentridge, “Equality,” 14.2–14.3. See also C. L’heureux-Dube, “Making a Difference. The Pursuit of Equality and a Compassionate Justice,” South African Journal of Human Rights 1997, 340–341; N. Smith, “Affirmative Action under the New Constitution,” South African Journal of Human Rights 1995, 94. 44. Kentridge, “Equality,” 14.35. Cf. J. De Waal, “Equality,” 155. 45. Section 8(3)(a), 1993 Constitution: “This section (requiring equality before the law, equal protection of the law and prohibiting unfair discrimination) shall not preclude measures designed to achieve the adequate protection and advancement of persons or groups or categories of persons disadvantaged by unfair discrimination, in order to enable their full and equal enjoyment of all rights and freedoms.” Inter alia D. Davis,

South Africa’s 1993 or Interim Constitution

46.

47.

48. 49. 50.

91

“Equality and Equal Protection” in D. Van Wyk et al. (eds.), Rights and Constitutionalism. The New South African Legal Order, Kenwyn, Juta, 1994, 210; A. Sachs, Advancing Human Rights in South Africa, 102; F Sonn, “Afrikaner Nationalism and Black Advancement as Two Sides of the Same Coin” in C. Adams (ed.), Affirmative Action in a Democratic South Africa, Kenwyn, Juta, 1993, 1; Van Wyk, “Introduction to the South African Constitution,” 158. For an indication that during the negotiations on the exact formulation of the affirmative action clause its sensitive nature as to appropriate implementation modes was already apparent: “The real bone of contention among the negotiation parties proved to be the subclause permitting measures designed to achieve affirmative action. Some libertarians insisted that these measures explicitly referred to as ‘reasonable’ measures.” In the end, however, the Negotiating Council concluded that the requirement of reasonableness is inherent in the formulation of the proposed clause itself since it requires affirmative action measures to be “designed to achieve the adequate protection and advancement of persons or groups or categories of persons disadvantaged by discrimination in order to enable their full and equal enjoyment of all rights and freedoms.” It was acknowledged that the word “designed” required a rational scheme which would have to advance a particular purpose, namely that of “full and equal enjoyment of all rights and freedoms” (L.M. Du Plessis, “A Background to Drafting the Chapter on Fundamental Rights” in B. De Villiers [ed.], Birth of a Constitution, Kenwyn, Juta, 1994, 94–95). Cf. Smith, “Affirmative Action under the New Constitution,” 92. Section 8(2), 1993 Constitution. It should nevertheless be underlined that this clause prohibits “unfair” discrimination, giving rise to an interesting jurisprudence of the Constitutional Court on the different stages of analysis. For an interesting analysis of the equality clause, before the most important judgements of the Constitutional Court in this regard were handed down, see T. Loenen, “The Equality Clause in the South African Constitution. Some Remarks from a Comparative Perspective,” South African Journal of Human Rights 1997, 406–413. Section 8(1), 1993 Constitution. Inter alia Davis, “Equality and Equal Protection,” 209. Oomen mentions in this regard that South Africa has clearly chosen for the legal recognition of cultural pluralism (Oomen, “Group Rights in Post-Apartheid South Africa: the Case of the Traditional Leaders,” 1). Although she makes this statement in relation to the final Constitution, most of her arguments to support his statement are also valid for the interim Constitution. Sacks states furthermore explicitly regarding the interim Constitution that “[w]hat emerged from the negotiated settlement was a constitutional state in which the Constitutional Principles ensured that democracy, protection for minorities and a Bill of Rights would be part of the final constitution” (Sacks, “Multiculturalism, Constitutionalism and the South African Constitution,” 673). See, however, Currie who is a lot more critical about the degree to which the interim Constitution supports and guarantees minority protection: “interim Constitution which possessed little more than a bare minimum of minority rights protection” (I. Currie, “Minority Rights: Culture, Education and Language” in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, Kenwyn, Juta, loose-leaf, 35.4). A more extensive review will be offered of all the possible provisions of the 1996 Constitution that have potential to contribute to the accommodation of South Africa’s population diversity.

92

Minority Protection in Post–Apartheid South Africa

51. Regarding the need to redress legacies from the apartheid past, it should also be underlined that the property clause “was a bone of contention right from the outset. . . . a constitutional strategy providing for the restoration of rights in land to persons who had been dispossessed of such rights as a result of racially discriminatory policies were, however, intensely negotiated” (Du Plessis, “A Background to Drafting the Chapter on Fundamental Rights,” 97). 52. I. Currie. “Official Languages” in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, Kenwyn, Juta, loose-leaf, 37.1; Subcommittee on Languages of both the National Assembly and the Senate, Policy Discussion Paper on the Pan South African Language Board, March 1995, 10–11. 53. Section 3(1), 1993 Constitution: “Afrikaans, English, isiNdebele, Sesotho sa Leboa, Sesotho, siSwati, Xitsonga, Setswana, Tshivenda, isiXhosa and isiZulu shall be the official South African languages at national level, and conditions be created for their development and for the promotion of their equal use and enjoyment.” 54. Section 3(2), 1993 Constitution: “Rights relating to language and the status of languages existing at the commencement of this Constitution shall not be diminished, and provision shall be made by an Act of Parliament for rights relating to language and the status of languages existing only at regional level, to be extended nationally in accordance with the principles set out in subsection (9).” 55. Currie, “Official Languages,” 37.6–37.7. 56. Ibid., 37.6. 57. Currie, “Official Languages,” 37.4; A. Sachs, Language Rights in the New Constitution, Johannesburg, SA Constitutional Studies Centre, 1994, 9–15. 58. Section 3 (9) (a), 1993 Constitution: “Legislation, as well as official policy and practice, in relation to the use of languages at any level of government shall be subject to and based on the provisions of this section and the following principles: (a) The creation of conditions for the development and for the promotion of the equal use and enjoyment of all official South African languages.” 59. Section 3(5), 1993 Constitution. 60. D. Brand, “Constitutional Language Rights in Canada and South Africa,” Tydskrif vir Afrikaans Reg 1997, 692. 61. Section 3(10)(a), 1993 Constitution. 62. Section 32(a), 1993 Constitution: “Every person shall have the right—(a) to basic education and to equal access to educational institutions.” 63. Equality concerns in education have multiple guises. See R.R. Kriel, “Education” in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, Kenwyn, Juta, looseleaf, 38.7–38.8, who distinguishes between concerns of affirmative action, prospective equality and finally justifiable inequality. According to Kriel, “[t]he equal access right in s 32(a) has purely procedural force. It does not provide rights to education—it provides for access to educational institutions. Furthermore, it does not provide for automatic or absolute access—it provides for equal access. In effect the right to equal access in s 32(a) is an anti-discrimination provision. It prohibits admission requirements which are discriminatory, and it may go further by requiring positively that admission itself be non-discriminatory” (ibid., 38.9), which he relates to affirmative action concerns (ibid., 38.11). 64. See also C. Dlamini, “Culture, Education and Religion” in D. Van Wyk et al. (eds.), Rights and Constitutionalism: The New South African Legal Order, Kenwyn, Juta, 1994, 589–590.

South Africa’s 1993 or Interim Constitution

93

65. Section 32(b), 1993 Constitution: “Every person shall have the right—(b) to instruction in the language of his or her choice where this is reasonably practicable.” 66. For an author who underscores the issue of freedom of choice, see Kriel, “Education,” 38.11: “[t]he key to interpreting s 32(b) is the notion of choice. The section is not about the language of a person’s birth or a person’s mother tongue—it is about allowing people to choose the language of their instruction.” Heugh underscores the resistance among “black” parents regarding mother-tongue education (K. Heugh, “From Unequal Education to the Real Thing” in K. Heugh et al. (eds.), Multilingual Education for South Africa, Johannesburg, Heinemann, 1995, 43). 67. Kriel, “Education,” 38.13 who argues that “practicability” be understood in a pedagogical (including the “numbers” issue) and financial sense but with priority for the first consideration. 68. Section 32(c), 1993 Constitution was, however, the subject of a Constitutional Court case which needed to clarify whether that section does or does not place more than a negative obligation on the part of the state. In the Gauteng Provincial Legislature in Re: Dispute Concerning the Constitutionality of Certain provisions of the School Education Bill of 1995 (CCT 39/95, 4 April 1996, 1996 SA 165 (CC), 1996 (4) BCLR 537 (CC)), the petitioners argued that it would create a positive obligation on the state to accord to every person the right to require the state to establish, where practicable, educational institutions based on a common culture, language, or religion. The Constitutional Court, however, rejected this argumentation and held that neither the language of the subsection itself nor the language and historical context of the Constitution as a whole supported the argument that every person can demand from the state the establishment of schools based on a common culture, language, or religion. The section does give every person the right to establish such educational institutions him or herself as well as the protection of the court in case that right would be threatened (see § 9 of the judgement). For an analysis of this case, see K. Henrard, “Het Grondwettelijk Hof van Zuid-Afrika: Samenstelling, Procedure en Belangrijke Ontwikkelingen in de Juriprudentie,” Tijdschrift voor Publiek Recht 1998, 858– 859). The final Constitution states in any event explicitly that the corresponding right would concern private educational institutions. See also Kriel, “Education,” 38.17–38.18. 69. The Potgietersrus case (Matukane v Laerskool Potgietersrus, case no 2436/96, heard in the Transvaal provincial division), demonstrates that the application of the proviso in section 32(c), 199 Constitution may not be that straightforward. Potgietersrus laerskool is a state-aided public school, Afrikaans/English dual medium, but with a strong preponderance of Afrikaans-speaking students. The school had refused admission to a number of black children, and the claim was that they were refused on racial grounds. The respondent argued inter alia that the school has an exclusively Afrikaans Christian culture and ethos which would detrimentally be affected or even destroyed by admitting pupils with a different cultural background. Consequently, the school would be entitled to refuse admission of pupils on grounds of culture as being not contrary to the constitution and that the respondent’s governing body is entitled to protect the cultural character and ethos of the school by refusing to admit pupils from different or foreign culture. The counter argument, which was accepted by the Court, was that the purported refusal on cultural grounds was a poor disguise for a policy that is patently racist. Cf. Kriel, “Education,” 38.19, who relates this to the question whether “discrimination” in s 32(c) IC can also concern indirect discrimination.

94

Minority Protection in Post–Apartheid South Africa

70. Currie, “Minority Rights: Culture, Education and Language,” 35.1. 71. Bonthuys, Group Rights, 52; Currie, “Minority Rights: Culture, Education and Language,” 35.1. 72. Currie, “Minority Rights: Culture, Education and Language,” 35.4. 73. Government’s Proposals on a Charter of Fundamental Rights, 2 February 1993, articles 6 and 34. 74. Currie, “Minority Rights: Culture, Education and Language,” 35.4. See also South African Law Commission (SALC), Interim Report on Group and Human Rights, Pretoria, SALC, 1991, 679–680 which inter alia underscored that there would be no “statutorily definable groups with statutorily definable ‘rights’ ” in South Africa. 75. A. Sachs, Protecting Human Rights in a New South Africa, Cape Town, Oxford University Press, 1990, 150. See also T. Hanf, “The Prospects of Accommodation in Communal Conflicts: a Comparative Study” in H. Giliomee & L. Schlemmer (eds.), Negotiating South Africa’s Future, Johannesburg, Southern Book Publishers, 1989, 108. 76. Section 31, 1993 Constitution: “Every person shall have the right to use the language and to participate in the cultural life of his or her choice.” 77. Currie, “Minority Rights: Culture, Education and Language,” 35.3 and 35.5. 78. C. Van Riet & G. Erasmus, Human Rights Practice 1997, Joint Project between the Lawyers for Human Rights and Practical Legal Training (the association of law societies of the Republic of South Africa, 1997, 245. 79. Cf. Currie, “Minority Rights: Culture, Education and Language,” 35.24. 80. Van Wyk, “Introduction to the South African Constitution,” 158. See also Corder, “Towards a South African Constitution,” 425–426; Gonidec, “Conflits Internes et Question Nationale en Afrique: Le Droit à l’Autodétermination Interne,” 553; X. Philippe, “Les Développements Constitutionnels en Afrique du Sud,” Revue Belge de Droit Comparé 1995, 441. 81. Corder, “Towards a South African Constitution,” 524–525; Coveliers and Veys, “De Zuid-Afrikaanse Grondwet van 1996,” 238; Philippe, “Les Développements Constitutionnels en Afrique du Sud,” 441. See also the ANC’s Constitutional Principles and Structures for a Democratic South Africa of 8 January 1989. 82. Coveliers and Veys, “De Zuid-Afrikaanse Grondwet van 1996,” 238; Van Wyk, “Introduction to the South African Constitution,” 158. See also Lobban, “Un Accord Négocié: le Processus Constitutionnel en Afrique du Sud depuis 1991,” 78, who underlines that the ANC was extremely conscious of the dangers of an excessive regionalism. 83. G. Erasmus, “Provincial Government under the 1993 Constitution. What direction will it take?” SA Public Law 1994, 409; Van Wyk, “Introduction to the South African Constitution,” 157. 84. Coveliers and Veys, “De Zuid-Afrikaans Grondwet van 1996,” 238; Van Wyk, “Introduction to the South African Constitution,” 157. Corder mentions in this regard, after having underscored the ANC’s suspicion vis-à-vis federalism due to apartheid’s abuse of that mechanism, that: “[t]his suspicious attitude was exacerbated by the National Party’s sudden espousal of “federalism” as the solution of the country’s constitutional dilemma’s” (Corder, “Towards a South African Constitution,” 525). 85. Erasmus, “Provincial Government under the 1993 Constitution. What Direction Does It Take?,” 410. 86. Corder, “Towards a South African Constitution,” 525.

South Africa’s 1993 or Interim Constitution

95

87. Manby, “South Africa: Minority Conflict and the Legacy of Minority Rule,” 42. The IFP’s insistence and perseverance to achieve the highest amount of competencies possible for the provinces is exemplified by the adoption of the 1992 Constitution for Kwazulu-Natal (of no legal effect); which can furthermore be considered a precursor for their abortive attempt for a provincial constitution in 1996. Manby underlines that “the draft proposed that Kwazulu-Natal should be a member state of a Federal Republic of South Africa, in which no federal law would be able to override any state law and no federal taxes levied without the permission of the state” (ibid.). 88. Currie, “Minority Rights: Culture, Education and Language,” 35.4. 89. See also C. De Coning and I. Liebenberg, “Regional Demarcation: A South African Perspective” in B. De Villiers and J. Sindane (eds.), Regionalism. Problems and Prospects, Pretoria, HSRC, 1993, 45. 90. Inter alia Coetzee, Die Verrekening van die Etniciteitsfaktor in Grondwetskryving in Suid-Afrika—‘n Politikologiese Analise, Universiteit van Oranje Vrijstaat, 1995, 73–74; Gloppen, The Battle over the Constitution, 251–253. Their account of the demographic realities of the provinces in South Africa demonstrates that this relative concentration of population groups is not only the case for Kwazulu-Natal and the Western Cape but also for the Eastern Cape, Free State, and the Northern Province. Regarding the relation between minority protection and federalist features of the South African form of state, see Strydom, “Minority Rights Issues in Post-Apartheid South Africa,” 894. See also De Coning and I. Liebenberg, “Regional Demarcation: a South African Perspective,” 45 91. For an extensive analysis of all the relevant constitutional provisions, including the distinctive last-minute amendments pertaining to the form of state, see D. Elazar, “Form of State: Federal Unitary or . . .” in B. De Villiers (ed.), Birth of a Constitution, Kenwyn, Juta, 1994, 29–36; U. Leonardy, “Constitutional Provisions on Devolution and Federalism” in B. De Villiers (ed.), Birth of a Constitution, Kenwyn, Juta, 1994, 144–171; R. Watts, “Is the New South African Constitution, Federal or Unitary?” in B. De Villiers (ed.), Birth of a Constitution, Kenwyn, Juta, 1994, 75–88. Cf. K. O’Malley, “The Interim Constitution: A Figleaf for Federalism,” Politeia 1994, 123. 92. Cf. J. Klaaren, “Federalism” in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, Kenwyn, Juta, loose-leaf, 5.1. 93. Inter alia Coveliers & Veys, “De Zuid-Afrikaanse Grondwet van 1996,” 238; Ellmann, “The New South African Constitution and Ethnic Division,” 21; G. Erasmus, “The New Constitutional Dispensation: What Type of System?” Politikon 1994, 12–13. 94. Inter alia Corder, “Towards a South African Constitution,” 525; Coveliers and Veys, “De Zuid-Afrikaanse Grondwet van 1996,” 238; Manby, “South Africa: Minority Conflict and the Legacy of Minority Rule,” 46. Cf. Venter, “Milestones in the Evolution of the New South African Constitution and Some of its Salient Features,” 219. 95. The sections that are relevant to determine the legislative powers of the provinces include § 126, which refers to schedule 6 for the enumeration of the provinces competencies that are concurrent with parliament’s competence. Section 61 on bills affecting certain provincial matters also demonstrates a degree of protection of the provincial autonomy. The executive authority within a province vests in the premier and is concomitant to all its legislative competencies (section 144, 1993 Constitution). The premier is assisted by an executive council representing a government of provincial unity (section 149 (2), 1993 Constitution). Provinces have furthermore a share of revenue nationally collected (section 155, 1993 Constitution) and also have some circumscribed powers to levy taxes (section 156, 1993 Constitution).

96

Minority Protection in Post–Apartheid South Africa

96. The MPNP Negotiation Council established 28 May 1993 a Commission on the Delimitation/Demarcation of SPRs, whose recommendations regarding the delimitation of regions/provinces were accepted as basis for further discussion. Eventually certain package deals were struck and the 1993 Constitution defines in section 124 (in combination with schedule 1) the nine newly demarcated provinces. It should be noted though that a further constitutional process for demarcation and amendment of the provincial boundaries was provided for. For a good description of this entire process see C. De Coning, “The Territorial Imperative: Towards an Evaluation of the Provincial Demarcation Process” in B. De Villiers (ed.), Birth of a Constitution, Kenwyn, Juta, 1994, 189–222, and with special reference to 190, 193, 216–219. See also D. Welsch, “The Provincial Boundary Demarcation Process” in B. De Villiers (ed.), Birth of a Constitution, Kenwyn, Juta, 1994, 223–229. Regarding the boundaries of the provinces, it should be remarked that the 1996 Constitution states in section 103 (2) that “the boundaries of the provinces are those that existed when the Constitution took effect.” It should also be noticed that section 124 (1), 1993 Constitution provides for the possibility to change the names of a province by Parliament at the request of the provincial legislature. The following provinces have realized a change of name: Natal to Kwazulu-Natal (the Constitution of the Republic of South Africa Amendment Act, No 2 of 1994, section 1); Eastern Transvaal to Mpumalanga and Northern Transvaal to Northern Province (the Constitution of the Republic of South Africa second Amendment Act 1995, No 44 of 1995, section 13; and finally Pretoria-Witwatersrand-Vereeniging to Gauteng (Constitution of the Republic Amendment Act, No 20 of 1995, section 3). 97. Section 160, 1993 Constitution. 98. Section 48(1), 1993 Constitution: “The Senate shall be composed of 10 senators for each province.” 99. Section 12(3), 1993 Constitution: “An Act of Parliament which deals with a matter referred to in subsection (1) or (2) shall prevail over a provincial law inconsistent therewith, only to the extent that” followed by the enumeration of five instances in which national law would prevail over provincial law in a concurrent competence. See also Erasmus, “Provincial Government under the 1993 Constitution. What Direction Does It Take?,” 417, 420, Klaaren, “Federalism,” 5.13–5.15. 100. Section 98, 1993 Constitution. 101. Corder, “Towards a South African Constitution,” 500. 102. Section 84, 1993 Constitution. 103. Section 88, 1993 Constitution. 104. The eventual election results enabled the NP and the IFP to participate in the Government of National Unity, which they initially chose to do. 105. Du Plessis, “A Background to Drafting the Chapter on Fundamental Rights,” 98; Sacks, “Multiculturalism, Constitutionalism and the South African Constitution,” 678. 106. It should be clarified that customary law’s effective use and impact is especially important in the rural areas. In the urban areas, however, the degree of actual adherence beyond mere cultural respect is markedly less significant. See inter alia T.W. Bennett, “The Equality Clause and Customary Law,” South African Journal of Human Rights 1994, 122. Cf. J.C. Bekker, “How Compatible is African Customary Law with Human Rights? Some Preliminary Observations,” Tydskrif vir Hedendaags Romeins-Hollandse Reg 1994, 441.

South Africa’s 1993 or Interim Constitution

97

107. Du Plessis, “A Background to Drafting the Chapter on Fundamental Rights,” 98. See also T.W. Bennett, Customary Law, 10; I. Currie, “Indigenous Law” in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, Kenwyn, Juta, loose-leaf, 36.2; Chief Directorate Constitutional Affairs, Development and Transformation of Policy Matters on Traditional Leadership: Evaluation and Summation of Discussion with Academics and Experts, Pretoria, Department of Constitutional Development, 1996, 20. 108. Cf. I. Currie, “The Future of Customary Law: Lessons from the Lobolo Debate,” Acta Juridica 1994, 147. 109. Bennett, Customary Law, 21–22; Corder, “Towards a South African Constitution,” 501; Currie, “The Future of Customary Law: Lessons from the Lobolo Debate,” 148; Sacks, “Multiculturalism, Constitutionalism and the South African Constitution,” 678. 110. For a rather extensive review of these developments, see Du Plessis, “A Background to Drafting the Chapter on Fundamental Rights,” 98. 111. For a detailed discussion of these debates see Bennett, Customary Law, 29–40. 112. Du Plessis, “A Background to Drafting the Chapter on Fundamental Rights,” 93. 113. Currie, “Indigenous Law,” 36.20. 114. Currie, “Indigenous Law,” 36.20. A problematic feature of customary law is that it was distorted to fit apartheid purposes and was also partially codified which prevented it from developing in conformity with the changed attitudes of the people concerned (Bennett, Customary Law, 60–63 and 85; K.L. Robinson, “The Minority and Subordinate Status of African Women under Customary Law,” South African Journal of Human Rights 1995, 460). 115. Currie, “Indigenous Law,” 36.20. 116. Ibid. 117. Section 33(2), 1993 Constitution. 118. Currie, “The Future of Customary Law: Lessons from the Lobolo Debate,” 151. 119. Bennett, Customary Law, 23; R. M. Dlamini, “The Protection of Individual and Minority Rights” in B. De Villiers et al. (eds.), Institutional Development in Divided Societies, Pretoria, HSRC, 1998, 73; J.P. Maithufi, “Customary Law of Marriage and the Bill of Rights in South Africa: Quo Vadis?,” Tydskrif vir die Hedendaagse Romeins-Hollandse Reg 1996, 302–303. 120. Bennett, Customary Law, 42; Bekker, “How Compatible is African Customary Law with Human Rights? Some Preliminary Observations,” 442; Robinson, “The Minority and Subordinate Status of African Women Under Customary Law,” 469, 471. See also Currie, “Indigenous Law,” 36.26). 121. Bennett, Customary Law, 22. 122. Bennett, “The Equality Clause and Customary Law,” 123. 123. Inter alia Currie, “Indigenous Law,” 36.20–36.21, 36.26–36.27; Robinson, “The Minority and Subordinate Status of African Women Under Customary Law,” 171. 124. Bekker, “How Compatible is African Customary Law with Human Rights? Some Preliminary Observations,” 441. 125. Bennett, Customary Law, 10. 126. Cf. Dlamini, “The Protection of Individual and Minority Rights,” 70. 127. Bennett, Customary Law, 10. In this regard, see also the opinion of CONTRALESA a national foundation, founded in 1987, purporting to represent the traditional leaders of South Africa: CONTRALESA, “Role and Future of Traditional Leaders by the National General Council of CONTRALESA,” submission to the Department of Constitutional Development, 13.

98

Minority Protection in Post–Apartheid South Africa

128. See also F. Cachalia, “Citizenship, Muslim Family Law and a Future South African Constitution: A Preliminary Enquiry,” Tydskrif vir die Hedendaagse RomeinsHollandse Reg 1993, 395. 129. Cf. G. Carpenter, “Beyond Belief—Religious Freedom under the South African and American Constitution,” Tydskrif vir die Hedendaagse Romeins-Hollandse Reg 1995, 693. 130. South Africa’s Hindu Maha Sabha (established in 1912 to become a national body for Hindus), however, did not focus in its submissions to the relevant Theme Committee of MPNP on the issue of recognition of Hindu marriages. It focused instead on the recognition of religious holidays and the reflection of Indian languages and culture in education (several documents given by the president of the organization, Mr. Kalideen). 131. For a critical analysis of the abuse of Christianity by the NP government, see C. Dlamini, “Culture, Education and Religion” in D. Van Wyk et al. (eds.), Rights and Constitutionalism: The New South African Legal Order, Kenwyn, Juta, 1994, 587. For a call to recognise also non-Christian marriages, see inter alia, Sachs, Advancing Human Rights in South Africa, 83. 132. E. Bonthuys and Du Plessis, “Whither the Validity of Marriages Concluded under a System of Religious Law under the Transitional Constitution,” SA Public Law 1995, 205. 133. Cachalia, “Citizenship, Muslim Family Law and a Future South African Constitution: A Preliminary Enquiry,” 410. 134. Sachs, Advancing Human Rights in South Africa, 90. For a more ambiguous evaluation, see Cachalia, “Citizenship, Muslim Family Law and a Future South African Constitution: A Preliminary Enquiry,” 410. 135. Currie, “Minority Rights: Culture, Education and Language,” 35.26–35.27. See also Bonthuys and Du Plessis, “Whither the Validity of Marriages concluded under a System of Religious Law under the Transitional Constitution,” 205. In view of the foundational importance of equality for the South African post-apartheid Constitution, it is likely to tighten the limitation inquiry in respect of the equality provision in comparison with other rights more closely related to cultural diversity and the right to cultural identity. 136. Dlamini, “Culture, Education and Religion,” 597. Cf. Chaskalson P’s judgement in Lawrence v S, §§ 101, 103. See, however, G. Carpenter, “Beyond Belief. Religious Freedom under the South African and American Constitution,” Tydskrif vir die Hedendaagse Romeins-Hollandse Reg 1995, 692. 137. Bennett, Customary Law, 70; T. Botha, “The Role of Traditional Leaders in Local Government” in X (ed.), Seminar Report: The Role of Traditional Leaders in Local Government in South Africa, Johannesburg, KAS, 1994, 28. 138. J.J. Van Wyk, Traditional Leaders and Authorities—From Pre-Colonialism to the 1996 Constitution. Evolution of Politics, Interests and Principles, Pretoria, Department of Constitutional Development, 1997, 76. 139. Cf. Y. Mokgoro, “Traditional Authority and Democracy in the Interim South African Constitution,” Occasional Papers (The Role of Traditional Leaders in the Interim South African Constitution), September 1994, 12; Vorster, “Chiefs in a Future South Africa,” 16. 140. Bennett, Customary Law, 66; Mokgoro, “Traditional Authorities and Democracy in the Interim South African Constitution,” 16. See, however, Sachs, Advancing Human Rights in South Africa, 77, who questions an inherent tension of this kind.

South Africa’s 1993 or Interim Constitution

99

141. Inter alia Bennett, Customary Law, 70; Currie, “Indigenous Law,” 3. 142. Botha, “The Role of Traditional Leaders in Local Government,” 28, 30; Chief Directorate Constitutional Affairs, Development and Transformation of Policy Matters on Traditional Leadership: Evaluation and Summation of Discussions with Academics and Experts—Discussion Document, Pretoria, Chief Directorate Constitutional Affairs, 1996, 13–14. The traditional leaders themselves tend to underline the high democratic degree of the institutional of traditional leadership in pre-constitutional times, see inter alia, CONTRALESA, Submission to the Constitutional Assembly on the Constitutional Role of Traditional Leaders, 1–10. 143. Bennett, Customary Law, 21. 144. Currie, “Indigenous Law,” 36.3. 145. Section 181 (1), 1993 Constitution: “A traditional authority which observes a system of indigenous law and is recognised by law immediately before the commencement of this Constitution, shall continue as such an authority and continue to exercise and perform the powers and functions vested in it in accordance with the applicable laws and customs, subject to any amendment or repeal of such laws and customs by a competent authority.” 146. Section 182, 1993 Constitution: “The traditional leader of a community observing a system of indigenous law and residing on land within the area of jurisdiction of an elected local government referred to in Chapter 10, shall ex officio be entitled to be a member of that local government, and shall be eligible to be elected to any office of such local government.” 147. Section 183 (1)(a), 1993 Constitution: “The legislature of each province in which there are traditional authorities and their communities, shall establish a House of Traditional Leaders consisting of representatives elected or nominated by such authorities in the province” (italics added). Subsection 2 regulates the advisory powers as well as its delaying powers regarding legislation relevant for these traditional authorities. Section 184 IC provides for the establishment of a Council of Traditional Leaders, subsection 4 determines its advisory powers while subsection 5 reflects its delaying powers concerning legislation dealing with issues of relevance to customary law, traditional authorities, or the customs and traditions of traditional communities. Cf. Currie, “Indigenous Law,” 36.7–37.10. 148. Constitutional Principle XIII: “The Institution, status and role of traditional leadership, according to indigenous law, shall be recognised and protected in the Constitution. Indigenous law, like common law, shall be recognised and applied by the courts, subject to the fundamental rights contained in the Constitution and to legislation dealing specifically therewith.” 149. It has been argued in this respect that “The inclusion of local government in the constitution and the recognition of traditional authorities create a new dimension in the South African constitutional dispensation. It implies inter alia that cultural structures and creatures of modern civilization have to be reconciled. This is surely not an easy task as they represent different ‘worlds’ but have to deal with the same human beings in some areas” (C. Thornhill, “Role of Traditional Leaders in Local Government,” paper presented at Workshop: Traditional Leaders and the Constitutional Process (17–18 March 1995), unpublished but on file with the author, 6). 150. Corder, “Towards a South African Constitution,” 505. Constitutional Principle XIII was complemented by a second paragraph requiring “the institution, role, authority and status of a traditional monarch shall be recognized and protected by the

100

151.

152. 153. 154.

155.

156. 157. 158.

159.

160. 161. 162. 163. 164. 165.

166. 167. 168. 169. 170.

Minority Protection in Post–Apartheid South Africa

Constitution.” Cf. Currie, “Indigenous Law,” 36.3; Van Wyk, “Introduction to the South African Constitution,” 159. Inter alia Currie, “Minority Rights: Culture, Education and Language,” 35.32; Manby, “South Africa: Minority Conflict and the Legacy of Minority Rule,” 36; H.A. Strydom, “Self-determination: Its Use and Abuse,” South African Yearbook on International Law 1991–1992, 111–112. Manby, “South Africa: Minority Conflict and the Legacy of Minority Rule,” 37. Strydom, “Self-Determination and the South African Interim Constitution,” 48. Currie, “Minority Rights: Culture, Education and Language,” 35.46. See also L. Boulle, “Advance, Retreat, Fatal Procedural Flaws” in K. Roberts and G. Howe (eds.), New Frontiers, The Kwazulu-Natal Debates, Durban, CALS, 1987, 31; S. Ellmann, “Federalism Awry: The Structure of Government in the Kwazulu/Natal Constitution,” South African Journal of Human Rights 1993, 165. Currie, “Minority Rights: Culture, Education and Language,” 35.32. See also Corder, “Towards a South African Constitution,” 503; Oomen, “Group Rights in Post-Apartheid South Africa: the Case of Traditional Leaders,” 6. Corder, “Towards a South African Constitution,” 503; Currie, “Minority Rights: Culture, Education and Language,” 35.33. Currie, “Minority Rights: Culture, Education and Language,” 35.33. Technical Committee on Constitutional Issues, Fourth Supplementary Report on Constitutional Principles, 26 July 1993, 7. See also K. Hailbronner & C. Kreuzer, Implementing Federalism in the Final Constitution of the Republic of South Africa (Occasional Papers), Johannesburg, KAS, September 1995, 8. Constitutional Principle XII, Schedule 4, 1993 Constitution: “Collective rights of self-determination in forming, joining and maintaining organs of civil society, including linguistic, cultural and religious associations, shall, on the basis of non-discrimination and free association, be recognised and protected.” Inter alia Corder, “Towards a South African Constitution,” 504; Oomen, “Group Rights in post-Apartheid South Africa: The Case of the Traditional Leaders,” 6. Corder, “Towards a South African Constitution,” 504; De Klerk, “The Process of Political Negotiation: 1990–1993,” 9. Corder, “Towards a South African Constitution,” 504; Van Wyk, “Introduction to the South African Constitution,” 157–158, 165–166. Cf. Corder, “Towards a South African Constitution,” 504–505. Currie, “Minority Rights: Education, Culture and Language,” 35.33. See also Accord on Afrikaner Self-determination between the Freedom Front, the African National Congress and the South African Government/National Party, 21 April 1994, 12 where it sets out “Guidelines for the deliberations of the Volksstaat Council” and where it distinguishes different modes of self-determination including on a provincial and on a local community basis. Constitutional Principle XXXIV (1), Schedule 4 of the 1993 Constitution. Section 184 B(1), 1993 Constitution. Inter alia Van Wyk, “Introduction to the South African Constitution,” 165, 168. Corder, “Towards a South African Constitution,” 505. Lobban, “Un Accord Négocié: Le Processus Constitutionnel en Afrique du Sud depuis 1991,” 72; Manby, “South Africa: Minority Conflict and the Legacy of Minority Rule,” 46.

South Africa’s 1993 or Interim Constitution

101

171. For an evaluation of the entire interim Constitution, see inter alia Corder, “Towards a South African Constitution,” 521–527; Van Wyk, “Introduction to the South African Constitution,” 157–169. For a more in-depth analysis of issues pertaining to the Bill of Rights see D. Van Wyk et al. (eds.), Rights and Constitutionalism. The New South African Legal Order, Kenwyn, Juta, 1994, p 720. For an assessment of issues mainly concerned with the form of state see B. De Villiers (ed.), Birth of a Constitution, Kenwyn, Juta, 1994, p 432. For an enumeration and brief analysis of the specific facets of the interim Constitution that might be relevant for minority protection, see Strydom, “Minority Right Issues in Post-Apartheid South Africa,” 884–897. 172. See also Strydom, “Minority Rights Issues in Post-Apartheid South Africa,” 893. 173. Currie, “Minority Rights: Culture, Education and Language,” 35.32. 174. Ibid., 35.4. 175. Corder, “Towards a South African Constitution,” 537. 176. Manby, “South Africa: Minority Conflict and the Legacy of Minority Rule,” 51. 177. Ibid., 46. 178. Corder, “Towards a South African Constitution,” 491. Section 74(1), 1993 Constitution indeed precludes amendments to the Constitutional Principles by the elected Parliament/Constitutional Assembly. 179. Manby summarizes the overall content of the Constitutional Principles as follows: “[I]n summary they provide that South Africa shall be a united and democratic society ‘founded on equality, non-racialism, non-sexism, supremacy of the constitution and the rule of law, universal adult suffrage, a common voters roll, proportional representation, regular elections and a multi-party system of democratic government, to ensure accountability, openness’ and a unique system of strong provincial autonomy within a unitary state. Together they ensure a structure in which people of all persuasions could express their preferences. But the Constitutional Principles also ensured that the multiplicity of languages and cultures would be respected and even fostered.” (Manby, “South Africa: Minority Conflict and the Legacy of Minority Rule,” 674). 180. Van Wyk, “Introduction to the South African Constitution,” 159–160. 181. Manby, “South Africa: Minority Conflict and the Legacy of Minority Rule,” 673. 182. Constitutional Principles I (“government committed to achieving equality between . . . people of all races”) and V (“The legal system shall ensure the equality of all before the law . . . includes laws, programmes or activities that have as their object the amelioration of the conditions of the disadvantaged, including those disadvantaged on the grounds of race, colour”). 183. Constitutional Principle III: “The Constitution shall prohibit racial, gender and all other forms of discrimination.” 184. Constitutional Principles XVIII, XIX, XX, XXII and XXVI. CP XVII(2) was added in a constitutional amendment to placate the IFP and was of crucial importance during the certification process and reads “The powers and functions of the provinces defined in the Constitution, including the competence of a provincial legislature to adopt a constitution for its province, shall not be substantially less than or substantially inferior to those provided for in this Constitution.” 185. For the position under the 1993 Constitution regarding the public service, see section 236, 1993 Constitution entitled “Transitional arrangements: Public Administration.” Cf. Manby, “South Africa: Minority Conflict and the Legacy of Minority Rule,” 46.

102

Minority Protection in Post–Apartheid South Africa

186. Constitutional Principle XI: “The diversity of language and culture shall be acknowledged and protected, and conditions for their promotion shall be encouraged.” 187. Strydom, “Minority Rights Issues in Post-Apartheid South Africa,” 882. 188. For a confirmation that bringing government closer to the people has positive implications for the accommodation of population diversity and nation building, see Manby, “South Africa: Minority Conflict and the Legacy of Minority Rule,” 52.” See also Sacks, “Multiculturalism, Constitutionalism and the South African Constitution,” 691, who underlines its importance especially regarding matters related to ethnic identity. 189. See also Manby, “South Africa: Minority Conflict and the Legacy of Minority Rule,” 46–47. 190. South African Institute of Race Relations (SAIRR), Race Relations Survey 1994–1995, 339. The other parties obtained the following percentage of votes: Freedom Front 2.2 percent, the Democratic Party 1.7 percent, the Pan African Congress 1.2 percent, the African Christian Democratic Party 0.5 percent and “other” 0.9 percent (ibid.). 191. The Cabinet of the GNU was announced on 11 May 1994 at the Union Buildings in Pretoria. See SAIRR, Race Relations Survey 1994–1995, 341. 192. Section 149(2), 1993 Constitution. 193. SAIRR, Race Relations Survey 1994–1995, 353. 194. Sections 184(a) and 184(b), 1993 Constitution. 195. SAIRR, Race Relations Survey 1994–1995, 348. 196. Inter alia the ANC’s explicit and strong rejection of the Council’s proposal of a 10th province for Afrikaners: Volksstaat Council, Discussion Document on SelfDetermination and the Working Draft of the New Constitution of November 22 1995, submission to the Constitutional Sub-Committee, 27 February 1996; M.S. Prabhakara, “ANC Rejects Afrikaner Province Plan,” [www.webpage.com/ hindu/ 96O309/15/0511b.html]. See also Volksstaat Council, Report to the Portfolio Committee on Constitutional Affairs (NA), Pretoria, VSC, May 1998, 6 and 9–11.

4

Negotiations Leading up to the 1996 Constitution and the Varied Approaches Adopted to Accommodate South Africa’s Population Diversity

THE NEGOTIATIONS OF THE CONSTITUTIONAL ASSEMBLY PROCESS, LEADING UP TO THE 1996 CONSTITUTION: SENSITIVE ISSUES, DEADLOCKS, AND COMPROMISES1 Introduction The constitutional negotiations preceding the adoption of the 1996 Constitution also had to deal with the contentious question of how to accommodate and protect ethnic, religious, and linguistic minorities in a democratic state.2 It can even be argued that this was more the case here than under the 1993 Constitution as issues relating to the status of languages as well as language in education effectively deadlocked the process until the last minute.3 When the negotiations in the Constitutional Assembly (CA) started in 1995, the different political parties with seats in the CA gave their view on certain features they thought should be reflected in the Constitution. It is interesting to mention these opinions as they give an indication of the issues that were sensitive and required long and intense negotiations. Whereas the National Party (NP) this time insisted explicitly on the need to guarantee minority rights,4 the Freedom Front (FF) underlined the need to prevent oppression of the minority while

104

Minority Protection in Post–Apartheid South Africa

acknowledging majority rule. The main objective of the FF was obviously to further its ideal, namely the Volksstaat and the related issue of self-determination for Afrikaners.5 The Inkatha Freedom Party (IFP), on the other hand, not only furthered its goal of a secure status for the Zulu monarch but also continued its attempt to get a stronger devolution of competencies to the provincial level that would provide a measure of regional autonomy for Kwazulu-Natal.6 The Democratic Party (DP) was in favor of allocating more powers to the provincial governments to further its ideal of bringing government closer to the people. That party is also quite affirmative about the need to guarantee fundamental human rights and strongly rejects any form of racial discrimination, while supporting accommodation of the cultural, religious, and linguistic population diversity of South Africa.7 The ANC, finally, made abundantly clear that the constitution should reflect the principle of majority rule,8 thus confirming its resistance to “any attempt to constitutionalize measures which might be used to favor particular ethnic groups.”9 Whereas democratic representation at all levels of government was also very high on its agenda, the ANC emphasized at the same time that this did not imply a rejection of the institution of traditional leaders.10 Significantly, the ANC remained very vague on the federalism/form of state issue. The different focus of the political parties clearly reveals their varying ideas about the appropriate avenues to accommodate the country’s high population diversity. In view of the fact that the National Party was the second largest party in the CA, its views, including those on the need for minority rights, inevitably influenced the shape of the so-called final Constitution.11 Freedom of Speech and Hate Speech The issue of hate speech was not so problematic in that all parties agreed that there should be restrictions on the use of hate speech12 on racial, ethnic, and religious grounds. As racial hate speech has been a feature of public and private life during apartheid, it is understandable that this kind of speech is considered negatively in post-apartheid South Africa.13 The fact that hate speech is not protected by the freedom of expression enables the legislator to make laws prohibiting and criminalizing this type of speech, but only insofar as it would amount to “advocacy of hatred that is based on race, ethnicity, gender or religion.” Legislation prohibiting or criminalizing racial hate speech would not only amount to a safeguard for the White, Colored, and Indian minorities but would also protect members of the African majority against racial insults, thus contributing to an overall more positive coexistence of the various population groups. An analogous remark can be made about legislation prohibiting and criminalizing hate speech on ethnic and religious grounds. There were different opinions on whether hate speech should be dealt with under the general limitation clause or rather as a specific limitation in the section on freedom of expression itself.14 The latter option would effectively narrow the

Negotiations Leading up to the 1996 Constitution

105

field of application of this fundamental right and would preempt the balancing process inherent in the limitations clause,15 which was felt to be problematic by the National Party and the Democratic Party.16 Eventually, what carried most weight was the tragic experience of South Africa that hate speech “can lead to an atmosphere of race hate and insensitivity, fostering palpable acts of violence and discrimination.”17 The fact that comparative and international law favor an explicit prohibition of hate speech further buttressed the choice for the second option.18 That option was said to further underline that the new South Africa would be “a society in which the perpetrators of racial/hate speech are not tolerated and in which the victims of racism and discrimination are protected and valued.”19 Although it is indeed generally acknowledged that international law recognizes the need to prevent incitement of racial hatred,20 several authors continue to claim that the general limitations clause would be sufficient to deal with hate speech because of the strong constitutional emphasis on values like human dignity and equality.21 In the end, the extent to which this provision on hate speech effectively curtails freedom of expression will depend on the courts and how broadly they interpret “advocacy of hatred that is based on race, ethnicity, gender or religion.”22 Customary Law and the Institution of Traditional Leadership in Terms of the 1996 Constitution Although traditional leaders made several submissions to the CA and pressed for some kind of exemption of customary law from the Bill of Rights23 and for an entrenchment and recognition of the status and role of traditional leaders,24 they wielded much less influence in comparison with the situation at the MultiParty Negotiation Process (MPNP) and their demands were not met. In this respect, it should be mentioned that the IFP, with its highly favorable position regarding traditional leadership, walked out of the CA process in February 1995.25 Currie very aptly sketches the overall tension involved: The new constitutional order is based on a rejection of a past characterized by systematic inequality and unrestrained governmental power. The Constitution therefore attempts to establish a political culture of open and democratic governance backed by guarantees of individual freedom and equality. But the institution of traditional leadership rests on patriarchal and authoritarian foundations rather than on democratic values, while the body of indigenous law recognized and applied by the courts is pervaded by rules and customs that discriminate against women.26

Throughout the negotiations and discussions in the CA process, it was obvious that the negotiating parties were strongly inclined to acknowledge the supremacy of the Bill of Rights in general, while also being aware of the political sensitivity surrounding the debate about the place of traditional leadership in a democracy.27 At the same time, all the role players realized that it is not possible simply to abolish the institution of traditional leadership and/or customary law,28 neither

106

Minority Protection in Post–Apartheid South Africa

de facto nor de lege (by law) (due to Constitutional Principle XIII).29 The politically sensitive nature of the issue is probably the primary reason the relevant constitutional provisions contain rather vague and general statements.30 This technique does not take away the sensitivity but passes the “hot potato” on to the policy development and implementation process. As the Constitutional Court acknowledged and confirmed in the (second) certification judgement of the final Constitution, “social evolution, legislative deliberation and constitutional interpretation” will have to determine “the complicated, varied and everdeveloping specifics of how such leadership should function in the wider democratic society.”31 This ambivalent attitude towards traditional leadership meant that although the role of traditional leadership according to customary law was still recognized, subject to the Constitution,32 there was no longer a constitutional obligation to establish a national council or provincial houses of traditional leaders33 nor a guarantee of an ex officio membership at local government level after the next general elections.34 Consequently, the extent to which the institution and its role in matters of governance will be recognized in the future will depend on the goodwill of the national and provincial legislatures.35 Overall, the constitutional status of traditional leaders appears to have weakened in comparison to the 1993 Constitution. Nevertheless, the exact degree of their inclusion in the democratic state structure will become clear only through subsequent developments, including legislation and its application. Furthermore, customary law is recognized, but in a qualified way in that it is subject to the entire Bill of Rights including the equality clause, which points to the supervisory role of the legislature and the courts in this respect.36 The actual extent of the horizontal applicability of the Bill of Rights will also have considerable impact on this supervision by the courts. It will indeed determine whether non-statutory customary law in its application among individuals is directly or indirectly subject to the Bill of Rights.37 Although the relevant constitutional provisions overall might lead to the perception that under the new constitutional dispensation, traditional systems of authorities and governance are meant to disappear,38 ultimately the actual development and functioning of the provincial house and the national council39 of traditional leaders and the terms and application of the implementing legislation will determine the fate of the institution of traditional leadership and of customary law. Accommodation of Religious Diversity in the 1996 Constitution and a Brief Analysis of the General Limitations Provision Two other issues that did not amount to major stumbling blocks were both related to religion. South Africa is generally considered to be a religious society, and the importance of religion in the lives of many South Africans manifested itself in the strong reactions about the use of the term “secular state” to describe

Negotiations Leading up to the 1996 Constitution

107

South Africa. The problem was that the concept “secular” was misunderstood by the population as referring to a godless or even immoral state. After the constitutional experts had emphasized that a secular state by necessity implies religious freedom and religious tolerance, the popular dissatisfaction ceased.40 Still, it is significant that the term “secular state” was eventually not included in the 1996 Constitution, which can only be explained by the highly religious nature of the South African society and the perceived need to respect that. A closely related issue was whether or not the preamble should refer to God and if so, in what way. Since a preamble gives an important indication about a constitution’s fundamental values, this did cause some debate. Eventually a compromise was reached by taking the views of all the negotiating parties into account to some extent and by ending the preamble with the expression: “May God protect our people.”41 It was thus considered acceptable for the Constitution to not be a religiously neutral document. The status and significance attributed to the deity is nevertheless diminished in comparison to the interim Constitution, which had taken over the 1983 Constitution’s “in humble submission to the almighty God.” It was already apparent in the 1993 Constitution that South Africa did not want to institute a strict separation between church and state, which is obviously closely related to the fact that religion is indeed an important source of identity for many South Africans. The 1996 Constitution contains a provision analogous to section 14(2) of the interim Constitution, allowing for religious observances to be conducted at state or state-aided institutions, albeit under certain conditions.42 This clause, and especially the condition that religious observances are conducted on an equitable basis, can be argued to imply that the rights and interests of minority religions should also be properly taken into account when devotional arrangements are made in schools. Such a sensitivity towards minority concerns further supports the statement that the South African Constitution does not subscribe to a type of democracy amounting to simple majority rule.43 It was obvious early on that all parties agreed that freedom of religion, belief, and opinion should be guaranteed in the Constitution,44 which was in any event required by Constitutional Principle II. Although most parties agreed that there should be “reasonable limits in an open and democratic society,”45 there was extensive debate on the question of what kind of limits could and should be imposed on a person’s right to hold and practice religion. This issue is at the same time related to the question of the horizontal applicability of the Bill of Rights— especially the equality provision—and its impact on the possible recognition of forms of Muslim (and other religiously based systems of) personal and family law. It is appropriate to mention at this point that the South African Bill of Rights contains a general limitations provision that indicates the extent to which limitations to provisions of the Bill of Rights are acceptable. A legitimate limitation should be “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom,”46 which can be argued to be analogous to the corresponding provisions in international human rights instruments. It confirms the high importance attributed to equality (as well as democratic values) by

108

Minority Protection in Post–Apartheid South Africa

the post-apartheid Constitution. Although the 1996 Constitution no longer provides for an express hierarchy of rights, in contrast to the interim Constitution,47 it does enumerate explicitly “at least some of the factors a court should consider when deciding whether a limitation placed on a fundamental right is both reasonable and justifiable.”48 Woolman argues that the first factor, “the nature of the right,” would imply that “[i]f the right infringed is deemed crucial to our constitutional project, it will tighten several, if not all of the limitation inquiries that follow.”49 This analysis entails that the range of acceptable limitations to the equality clause would not be extensive, as the right to equality has such a central place in the new constitutional dispensation. The latter right will thus carry a lot of weight in any process of balancing competing rights and their underlying values.50 The possibility, already created in the 1993 Constitution, for legislation to recognize marriages and other systems of personal and family law under certain non-Christian religions, reflects a certain positive disposition for the protection of religious minorities. However, the negotiating parties wanted to avoid the impression that “systems of religious law trumped all provisions of the Bill of Rights.”51 Since there was a strong call to ensure that the right to equality was paramount in the final Constitution,52 all parties initially agreed to add the qualification that such legislation “must be consistent with the provisions of the Constitution.”53 Later on, representatives of the Muslim community managed to persuade the ANC to propose an amendment so that the legislation “must be consistent with this section and the provisions of the Constitution.” This “concession” was merely symbolic for the ANC and was therefore also acceptable to the other parties. The Muslim community felt that also, and specifically requiring consistency with the section on religious freedom, would leave them more scope to regulate family relations according to their religion, given that the courts would have to balance the equality provision with the provision on freedom of religion.54 For them, this measure of “accommodation” was an important sign that their concerns were also taken into account. The eventual degree of accommodation of religious diversity that can be achieved by this constitutional clause will be determined by the implementing legislation, the decisions of the courts, and especially the Constitutional Court, since the latter has the final word in constitutional matters (and can also invalidate legislation on this ground).55 In view of the crucial place given to equality concerns by the Constitution, there seems to be little scope for acceptable limitations to the right to equality.56 Power Sharing and Related Protection of Political Minority Parties A matter that proved to be more contentious57 and eventually also had farreaching effects58 was the debate regarding measures of power sharing and their constitutional entrenchment. Although the National Party did not start this round of negotiations with power sharing as its primary goal—it chose instead to stress

Negotiations Leading up to the 1996 Constitution

109

the need to protect minority rights—the negotiations did demonstrate that the party still felt strongly about assurances of that kind. Notwithstanding the fact that it easily agreed not to entrench a government of national unity in the 1996 Constitution, the National Party insisted that ongoing debates among political parties might lead to a reconsideration of this issue. It also urged that other avenues should be looked at to achieve multiparty participation.59 The NP’s apparent reluctance to let completely go of guarantees of power sharing was confirmed by the agreement that was reached in a bilateral between the ANC and the NP on a guarantee for minority parties to participate in the proceedings of both chambers of Parliament.60 Although the relevance to minority protection of guarantees for minority political parties seems rather low, it should be kept in mind that the voting pattern in South Africa is to some extent determined by factors of race and ethnicity.61 Horizontal Application of the Bill of Rights of the 1996 Constitution The main debate on the horizontal applicability of the Bill of Rights centered around the horizontal applicability of the equality provision. The potential impact of a horizontal application of the equality clause on customary law and Muslim personal law (due to their patriarchal and gender discriminatory features) has already been mentioned. It should, nevertheless, be emphasized that in view of the vulnerable position of minorities in the surrounding society,62 horizontal applicability of those fundamental rights of special relevance to them has potential positive implications for minority protection. The ANC had made abundantly clear from the beginning that it wanted the Bill of Rights to apply both vertically and horizontally so as to be able to get to the roots of the legacy of apartheid’s pervasive discrimination policies.63 Although the Inkatha Freedom Party (IFP), the Democratic Party (DP), the PanAfrican Congress (PAC), and the African Christian Democratic Party (ACDP) supported both types of application in principle, the DP as well as the FF urged caution regarding the horizontal application. The National Party appeared to have most reservations regarding horizontal application as it noted concern about disrupting South Africa’s private law system.64 Agreement was easily reached on the horizontal application of the right to dignity that would thus be directly applicable to customary law and common law.65 The main problem provision regarding horizontal application was the equality clause. The draft of the nondiscrimination clause at one point said explicitly “neither the state nor any person may discriminate” but this was felt to be problematic by NP and DP. These parties were in favor of a separate section that would oblige the state to pass laws regulating private discrimination.66 The ANC did not want to compromise on its clear preference for horizontal applicability of the nondiscrimination provision in order to ensure that there would be no “back door apartheid.”67 After intense discussions the nondiscrimination provision was

110

Minority Protection in Post–Apartheid South Africa

divided in two, one part dealing with discrimination by the state,68 the other with discrimination by a private person. The latter subsection also included a requirement for national legislation to prohibit unfair discrimination,69 and this legislation could offer further guidelines for the courts on how to deal with claims of unfair discrimination against a private person. In addition to the horizontal applicability entrenched in the section on equality, the general application provision also contains several indications of a more general horizontal applicability of the Bill of Rights. At least two differences with the 1993 Constitution make it difficult for the Constitutional Court not to adapt (to some extent) its jurisprudence as set out in Du Plessis v De Klerk.70 The Court held in that case that generally the Bill of Rights (of the 1993 Constitution) would not be capable of horizontal application.71 Not only is the judiciary now bound by the Bill of Rights72 and the courts obliged73 to “promote the spirit, purport and object of the Bill of Rights” when developing common and customary law,74 section 8 (2) also explicitly points out the qualified possibility of horizontal applicability of the provisions of the Bill of Rights: “A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.”75 Consequently, it can be argued that the wording of the 1996 Constitution concerning the application of the Bill of Rights confirms that the Bill of Rights has a qualified horizontal application.76 This qualified horizontal application recognizes that in certain circumstances, “private abuse of human rights may be as pernicious as violations perpetrated by the state.”77 In the end, this qualification and its interpretation by the courts and especially the Constitutional Court will determine the actual degree of horizontality of the Bill of Rights.78 The expression “to the extent that” appears to acknowledge that the Bill of Rights cannot bind individuals in the same way it binds the state. Whereas the state has no constitutional rights but only duties in view of the fundamental rights and freedoms of the individuals, the “duties imposed on individuals by the Bill of Rights must be balanced against the rights that the Bill of Rights accords to individuals.”79 Equality under the 1996 Constitution The importance of the equality principle for the post-apartheid era cannot be underestimated. However, there are several contentious issues with respect to the more specific formulation of the prohibition of discrimination. A problematic issue was the affirmative action clause in general and the recognition of the need for affirmative action in the public administration. Although the principle of affirmative action, as a means of addressing disadvantages due to past discrimination, was not contentious, the exact formulation of the affirmative action clause was.80 Eventually the following formulation was agreed upon: “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

Negotiations Leading up to the 1996 Constitution

111

advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.”81 Arguably, this clause clarifies that affirmative action is an implementation of and not an exception to the equality principle, thus confirming that the constitution embraces a substantive conception of equality.82 The debate on affirmative action does become rather contentious the more it is applied to concrete situations or fields of law,83 as exemplified by what has been discussed in the chapter on the public administration. Whereas the transitional provisions had secured the positions of the members of the public administration of the old order,84 the ANC felt very strongly about the need to include a constitutional commitment to affirmative action in that specific chapter because otherwise the status quo would remain.85 The DP and the NP felt that a general affirmative action clause in the Bill of Rights would be sufficient.86 Valli Moosa, then minister of constitutional development, underscored that in view of the fact that during apartheid the public service had excluded nonwhite people more than in any other area in South African society, the affirmative action principle should be repeated in the provisions on the public service to emphasize its importance.87 At the beginning of the post-apartheid era, it was indeed the case that “[o]fficials who dominate senior positions in these institutions . . . are predominantly white, and many or most still harbor strong sympathies for the apartheid order they served for many years.”88 It is difficult to deny in relation to the civil service that “the make up . . . is an issue with ramifications for the future of ethnic and racial politics in South Africa” (italics added).89 In the end, the following clause was included as one of the basic values and principles governing public administration, demonstrating that “affirmative action in the public administration has won the day”:90 Public administration must be governed by the democratic values and principles enshrined in the Constitution, including the following principles: . . . (i) Public administration must be broadly representative of the South African people, with employment and personnel management practices based on ability, objectivity, fairness, and the need to redress the imbalances of the past to achieve broad representation.91 (italics added)

Form of State and Division of Competencies between the National and Provincial Spheres of Government in Terms of the 1996 Constitution As during the negotiations leading up to the 1993 Constitution, the debates on the form of state and more specifically the division of competencies between the national and the provincial sphere of government revealed that it was a highly contentious issue in the Constitutional Assembly process.92 The extent to which federalist features in South Africa can enhance the accommodation of the country’s population diversity is linked not only to the relative concentrations of most ethnic and racial population groups in the nine provinces but also to the theory that the devolution of competencies to lower levels of government (in combination with a

112

Minority Protection in Post–Apartheid South Africa

degree of autonomy for these lower levels of government) tends to contribute to minority protection.93 In view of the theme of this work, I will focus on the degree of autonomy given to provinces to regulate matters of relevance for the “separate identities” of the “provincial” population groups and also on the extent to which the participation of the provinces in the national legislative process contributes to national legislation that takes this provincial diversity into account. The overall assessment of South Africa’s form of state is still ambivalent and invites descriptions ranging from “a federal state with unitary features”94 to “a unitary but strongly decentralized state.”95 The ANC, with its focus on nation building and transformation, wanted “a balanced and practical system of government,” whereas the other parties in general were in favor of a strong provincial government and a clarification of the respective competencies and powers.96 Most debates centered around the division of competencies, the distinction between concurrent and exclusive provincial legislative competencies,97 the formulation of the override clause for the concurrent competencies, and the interpretation of the intervention clause for the exclusive provincial competencies.98 Eventually, a separate schedule with exclusive provincial competencies was included99 in order to comply with Constitutional Principle XIX.100 Two of these competencies can be used to accommodate the intra-provincial cultural diversity: “[m]useums other than national museums” and “[p]rovincial cultural matters.”101 The following concurrent competencies also have an impact on the degree to which provinces have the possibility to accommodate, via legislative measures, the population diversity concerned: “[c]ultural matters”; “[e]ducation at all levels, excluding tertiary education”; “[i]ndigenous law and customary law” and “traditional leadership” (subject to chapter 12 of the Constitution dealing with traditional leaders); “[l]anguage policy and the regulation of official languages” as determined by section 6 (which deals with the status of the languages spoken in South Africa); and “[m]edia services directly controlled or provided by the provincial government” (subject to section 192 referring to the Independent Broadcasting Authority).102 Finally, the possibility to adopt a provincial constitution should be underscored since it would seem to allow for a more comprehensive system of minority protection compared to the national level, as long as the provincial constitution’s provisions are not inconsistent with those of the national constitution and comply with the latter’s central values like equality, human dignity, nonracialism and democracy.103 The actual degree of autonomy and ability for the provinces to provide minority protection on the basis of these competencies will ultimately depend on the way the courts, and finally the Constitutional Court, will interpret and apply the override provision regarding the concurrent competencies,104 the intervention clause regarding the exclusive provincial competencies,105 and the chapter on cooperative government.106 The latter chapter was added at a very late stage of the negotiations and enshrines several principles that should be adhered to by all three spheres of government.107

Negotiations Leading up to the 1996 Constitution

113

Another significant feature of the South African Constitution is the existence and the functions of the second chamber of Parliament, now called the National Council of Provinces (NCOP). The NCOP is designed to reflect provincial needs and interests at the national level.108 The NCOP consists of nine provincial delegations of ten members each.109 They are chosen by the provincial legislature itself,110 which confirms the NCOP’s role of representing the provincial interests at national level. Although the NCOP cannot participate in all the types of legislation, it does have a significant input regarding “ordinary Bills affecting provinces,” albeit that the National Assembly still has the final say.111 The NCOP, or more specifically six out of nine provincial delegations in the NCOP, also have to support a constitutional amendment dealing with section 1, the Bill of Rights and matters affecting the provinces and the NCOP.112 Provision is also made for representatives of local government on a part-time basis, which ensures that local interests are voiced at national level. However, these representatives of local government do not have the right to vote.113 Mandela correctly pointed out that the NCOP, in view of its composition and participation at the national level, is uniquely placed to reflect the diversity of South African society and to contribute to the project of nation building.114 Although the NCOP was and is not intended to strengthen the position of certain population groups in national decision making,115 the concerns of certain racial and ethnic population groups might very well be voiced at the national level through the provincial delegations, because of their relative territorial concentrations in certain provinces. In view of the fact that the participation of minority parties will have to be ensured in the provincial delegations,116 this could even be the case for a relatively small population group, provided it organizes as a political party. Only at a very late stage did the CA process effectively focus on the local government sphere117 the framework of whose powers, functions, and structures had to be set out in the Constitution in view of Constitutional Principle XXIV. As will be apparent from the analysis of the certification process of the national Constitution, this chapter required further elaboration, but even in the initial version several speeches delivered during the first and second reading of the Constitution preceding its adoption underlined that local government was clearly established as a separate sphere of government with original powers.118 All in all it can be said that regionalism has indeed a central place in the constitutional scheme.119 Its implications and contributions for the accommodation of South Africa’s population diversity will only be noticeable over time.120 Minority Rights and Self-Determination in Terms of the 1996 Constitution By way of preliminary remark, it should be mentioned that the more contentious and sensitive the constitutional matters were, the less they were discussed in the public sessions of the Constitutional Sub-Committee and the more

114

Minority Protection in Post–Apartheid South Africa

they were left to bi- and multilaterals of the political parties. Such procedures of course do not negate but rather confirm the participation of those political parties representing minority interests in the elaboration of the Constitution. One of the sensitive issues in question was the right to self-determination for an ethnic group (“a community sharing a common cultural and language heritage”) and the way in which Constitutional Principle XXXIV would be realized in the 1996 Constitution in view of its merely permissive wording.121 Self-determination on ethnic grounds tends to have many negative connotations as a result of apartheid’s Grand Apartheid scheme, but the idea of a Volksstaat was further perceived to be an attempt to perpetuate the concept of apartheid and to hold on to privileges gained during that era.122 The ANC was nevertheless aware of the fear felt by some Afrikaners that their language and culture would be swamped (and die) if they did not have some form of (preferentially territorial) self-determination.123 During the public negotiations, virtually no reference was made to the right to self-determination and its shape in the final Constitution.124 In view of the Freedom Front’s mandate and its focus on the Volksstaat ideal,125 that party argued that CP XXXIV legitimized their demand for constitutional recognition of a territorial Volksstaat. The ANC resisted such a recognition and relied inter alia on the fact that the first interim report of the Volksstaat Council, as presented to the CA, had demonstrated that there was a lot of internal division on the future shape of such a Volksstaat.126 Whereas initially these discussions involved only the ANC and the FF (bilateral), eventually, as time pressure was getting stronger and the need to make “deals” grew, this issue was settled at a “marathon of 36 hours of negotiations” 18–19 April 1997.127 During several hours of that marathon, trilateral meetings of the ANC, the NP, and the FF took place. Since during the previous bilaterals between the ANC and the FF, the ANC had formulated promises of cultural councils and rights analogous to article 27 ICCPR,128 the NP joined the discussion to further their goal of including minority rights in the Constitution. Eventually, the result of this trilateral was a three-dimensional agreement129 on a Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, cultural rights as in article 27 ICCPR (section 31)130 and a provision on self-determination the wording of which mimics Constitutional Principle XXXIV.131 Although the word “community” is used instead of “minority,” the similarities between article 27 ICCPR and section 31, 1996 Constitution are striking. The concept “community” was preferred because “minority” is related to the apartheid ideology and because the former concept would express ties of affinity and connectedness rather than ties of blood.132 It can nevertheless be argued that “the most pragmatic way to deal with the difficulties of definition of the term community is to see it as doing more or less the same work as the term it substitutes for article 27’s category of a ‘minority’.”133 Apartheid’s abuse of ethnicity furthermore explains the use of “cultural” instead of “ethnic.”134 It was decided that this Commission would be provided for in the chapter on State Institutions Supporting Constitutional Democracy, thus confirming the link

Negotiations Leading up to the 1996 Constitution

115

between democracy and minority protection. The Commission is to be broadly representative of the several communities in South Africa and is empowered to monitor, investigate, research, educate, advise, and report on issues concerning the rights of these communities.135 Further details should be provided by the legislation that will actually establish this commission.136 Section 185 (1) lists the following primary objectives of the Commission, which reveals that it is meant to contribute to the accommodation of South Africa’s population diversity:137 (a) to promote respect for the rights of cultural, religious, and linguistic communities; (b) to promote and develop peace, friendship, humanity, tolerance, and national unity among cultural, religious, and linguistic communities, on the basis of equality, nondiscrimination, and free association; and (c) to recommend the establishment or recognition, in accordance with national legislation, of a cultural or other council or councils for a community or communities in South Africa.

The Commission’s task to recommend the establishment or recognition of “cultural councils,” can be related to the right to identity of the corresponding population groups and arguably even to the internal dimension of self-determination. The content of the “national legislation” with more concrete guidelines and conditions will determine to what extent such councils will be able to contribute to the right to identity of minorities. Second, agreement was reached on the inclusion in the Bill of Rights of a section with additional “cultural rights” meant to reflect the spirit of article 27 ICCPR. The rights are indeed framed as collective rights, more specifically in terms of “members belonging to . . . communities,” and arguably enshrine a right to identity. There was some contention about the exact wording of the clause, whether it would be negative like article 27 ICCPR or positive, but eventually the negative phrasing was opted for and section 31 (1) (a) of the 1996 Constitution reads as follows: “Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community—(a) to enjoy their culture, practice their religion and use their language.” Section 31 (1) (b) of the 1996 Constitution138 takes up some of the language of Constitutional Principle XII and was “obviously included with an eye to achieving compliance with Constitutional Principle XII.”139 Section 31 (2) furthermore adds that these rights should not be exercised in a manner inconsistent with any provision of the Bill of Rights. This inconsistency clause and a similar addition to section 30 (section 31 in the 1993 Constitution) and “the right to use the language and participate in the cultural life of their choice,”140 is another indication of the recognition of the supremacy of the Bill of Rights. The third and final component of the package agreed to by the ANC, FF, and NP was that a provision would be added to the Constitution to enshrine the content of Constitutional Principle XXXIV. The eventual provision that was acceptable

116

Minority Protection in Post–Apartheid South Africa

to the parties is as vague in its formulation as the Constitutional Principle and so open-ended that it cannot be said to enshrine a right at all:141 The right of the South African people as a whole to self-determination, as manifested in this Constitution, does not preclude, within the framework of this right, recognition of the notion of the right of self-determination of any community sharing a common cultural and language heritage, within a territorial entity in the Republic or in any other way determined by national legislation.142 (italics added)

The fact that national legislation will determine the acceptable ways to implement self-determination underscores that section 235 actually does not grant a right to self-determination to communities but leaves this to the discretion of the national legislature. Nevertheless, it was argued that “s 235 requires that the phrase ‘self-determination’ is interpreted so as not to exclude the possibility of vindication of the right of self-determination by external or by internal political means” and also that the expression “community sharing a common cultural and language heritage” refers to an ethnic minority.143 Consequently, section 235 would at least leave the door ajar to forms of both external and internal (even with a territorial dimension) self-determination for “minorities,” thus securing the possible emergence of a Volksstaat,144 however tenuous that possibility might seem. It should, nevertheless, be pointed out that the section concerned, section 235, is part of the chapter with General Provisions and thus not of the Bill of Rights.145 Finally, to underscore the fact that the overall tendency of the 1996 Constitution moves away from a recognition of self-determination that would result in a Volksstaat, it should be pointed out that the Volksstaat Council can, in terms of that Constitution, be abolished by Parliament at will.146 In any event, the right to self-determination has, especially in its internal dimension, manifold implementation possibilities, which feature to a certain extent in South Africa’s 1996 Constitution.147 This three-dimensional agreement led to many spontaneous and very emotional speeches by several of the party leaders present at the Constitutional SubCommittee.148 Rolf Meyer (NP) emphasized that in this way the real needs of all cultural groups are accommodated and that it consequently amounted to an important step in the creation of a country where all peoples feel at home. Valli Moosa (ANC) added that these agreements capture in a democratic manner the aspirations of the country in that it may be a new way of dealing with the “national question” without contradicting the concept of nation building. The speeches of the other parties also acknowledged the importance of this breakthrough dealing with the stigmas of the past and working towards unity in diversity. Although these provisions came about as a result of claims and demands put forward by political parties representing (a section of) the Afrikaner population, it is clear that all parties realized and underscored its broader potential, namely for all population groups in South Africa to have a distinct identity and a wish to preserve that.149

Negotiations Leading up to the 1996 Constitution

117

Without wanting to negate the importance of this kind of agreement so soon after apartheid was formally abolished, it should also be put in perspective. Section 31 and the provision for the Commission imply the introduction of collective rights and the recognition of collective interests150 and thus amount to the entrenchment of some kind of minority rights (and minority protection). Although at first sight this contradicts the ANC’s strong rejection of special treatment for ethnic/cultural groups, it was the price they were willing to pay to placate the Freedom Front by accepting the weak recognition of the right to self-determination, while giving the National Party the minority rights it wanted.151 It is appropriate to mention at this point that the ANC has emphasized the overall objective of nation building in subsequent talks on the establishment of that Commission (and the rights provided for in section 31). At the same time it acknowledged the need to accommodate the country’s population diversity, thus taking up the theme of “unity in diversity.”152 It is not clear to what extent the prime objective of national unity and nation building will leave effective scope for genuine protection and promotion of diversity, as are made possible by sections 31 and 185 of the 1996 Constitution.153 Further implementation as well as application will reveal whether the ANC, as the dominant political party, senses that the goal of nation building can be furthered, instead of threatened, by accommodating South Africa’s population diversity effectively. In the end, the exercise will be about finding the right balance between promoting unity and accommodating diversity, which is not a straightforward matter and requires thorough consideration of all the relevant circumstances. It is, furthermore, appropriate to mention at this point that the inconsistency clauses in sections 30 and 31 indicate that one cannot rely on these sections to support a practice that would infringe (other) individual human rights enshrined in the Bill of Rights. In other words, the inconsistency clauses would make the application of the limitations clause with respect to these “other fundamental rights enshrined in the Bill of Rights” more rigid. It can also be argued that a lower status is attributed to rights to culture and rights to identity than to other rights of the Bill of Rights.154 At the same time, these inconsistency clauses would clarify that “the constitutional protection of community identity is not a license for that community to violate the rights of its members.”155 Consequently, section 31 cannot be used in support of a claim for anything that would imply a violation of another provision of the Bill of Rights. Insofar as the inconsistency clause refers back to the equality clause of the South African Constitution, it is important to repeat that the South African Constitution enshrines a substantive vision of equality. This feature of the Bill of Rights confirms the stance in international law that minority rights and provisions of minority protection more generally are not meant to create or entrench privileges but have as goal and as inherent limitation substantive equality. Overall, the actual degree to which section 31’s right to cultural identity will entail a (significant) contribution to the accommodation of cultural diversity may seem limited but will only be revealed by its implementation. Although the

118

Minority Protection in Post–Apartheid South Africa

assessment of section 31 will be a factor, it is important to point out that it is only one factor in the eventual evaluation of the extent to which the 1996 Constitution accommodates the country’s population diversity. Language and Education and the 1996 Constitution: Highly Sensitive Issues Two of the issues that remained unresolved until the very last moment concerned the provision on the status of languages and the provision in the Bill of Rights on education.156 These matters involved core principles for the two major parties, NP and ANC, and the formulation of the respective clauses remained contentious even after the momentous three-dimensional agreement on minority protection issues. Both matters were rarely openly discussed in the public sessions of the Constitutional Sub-Committee of the CA but were dealt with in bilaterals between the ANC and the NP. For a good understanding of the sensitivity of the language clause,157 it is appropriate and even necessary to give some information about the general trend as to language use in the public sphere after the adoption of the interim Constitution. Despite the 1993 Constitution’s insistence that the state was required to promote the equal use and enjoyment of all eleven official languages,158 there was (and is) an undeniable shift towards mono-lingualism in the public sphere, with the effect that English is increasingly emerging as the lingua franca. The establishment of the Language Plan Task Group (LANGTAG) as an advisory body to the Minister of Arts, Culture, Science and Technology in December 1995 was inter alia meant to counter this trend. LANGTAG’s mandate was to advise the Minister on a coherent national language plan that would aim at promoting national unity, while at the same time promoting respect and tolerance for linguistic and cultural diversity.159 Although both the draft and the final report of the language board came out only after the adoption of the (first version of) the final Constitution May 1996,160 it should be underlined that both reports criticize the official attitude in the national and also the provincial sphere of government for moving towards an English-only policy.161 Both the NP and the FF feared that Afrikaans would be marginalized and eventually completely swamped by English, and they wanted therefore the retention of the 1993 Constitution’s non-diminishment provision. Although the negotiators of the other parties, and especially the ANC, realized that it was vital to find a balanced way to calm this fear, the ANC was adamant that the non-diminishment provision was not acceptable in the long run.162 For the ANC it was essential that it should constitutionally be possible to improve the indigenous languages by reducing the status of Afrikaans so as to reach an equitable overall use of and status for all eleven official languages. In the end, the deadlock was resolved by an in se minor—but for the NP symbolically important—addition to one of the other subsections of the language clause. The NP was prepared to agree only that the nondiminishment provision be dropped on condition that the section dealing with

Negotiations Leading up to the 1996 Constitution

119

“use of language for purposes of government” at the national and provincial levels would require that this could not be only one language.163 The party felt that such a provision would at least counter the tendency that only English would be used at these levels. It cannot be denied that “the most substantial change (to the language clause) was the dropping of the non-diminution requirement.”164 The proclamation of eleven official languages in the 1996 Constitution,165 as in the 1993 Constitution,166 has an important symbolic value,167 especially for the speakers of the nine African languages, which used to be deprived of such status. The feeling of inclusiveness that is created by this linguistic policy should not be underestimated and confirms that accommodation of a state’s population diversity tends to have positive implications for the project of nation building.168 It is, nevertheless, striking that the objective of the 1996 constitution is no longer the equal treatment of the eleven official languages, but “merely” the equitable treatment and parity of esteem of these languages.169 “Equitable” treatment can be considered to strengthen the internal reference to subsection 2 and the need for positive measures by the state to elevate the status of the official indigenous languages. “Equitable” would make explicit that there is, in view of the “history of official denigration and neglect” of these indigenous languages, a need for differential and preferential treatment and not merely formally equal treatment.170 However, “equitable treatment” can also acknowledge that not all eleven official languages should or can always be used for all purposes.171 “Parity of esteem” would then “insist[s] that considerations of practicality aside, a sincere attempt must be made to ensure that particular languages do not dominate while others are neglected”172 and would imply a rejection of (the emergence of) an overpowering lingua franca. Finally, a minor change was made to the subsection on the Pan South African Language Board. The Board was created in 1995, by the Pan South African Language Board (PANSALB) Act, and was meant “to provide for the recognition, implementation and furtherance of multilingualism in the Republic of South Africa; and the development of previously marginalised languages.”173 The Act describes the objects of the Board inter alia as “[t]he creation of conditions for the development and for the promotion of the equal use and enjoyment of all the official South African languages,”174 “to further the development of the official South African languages”175 and “to promote respect for and the development of other languages used by communities in South Africa and languages used for religious purposes.”176 In view of the high degree of linguistic diversity in South Africa, extending way beyond the eleven official languages, the last objective is obviously important from the angle of minority protection. However, the 1996 Constitution modifies the Board’s obligations in two respects. On the one hand, it was felt important to include three highly marginalized indigenous languages, “Khoi, Nama and San,”177 among the languages that needed to be promoted and further developed as were the official languages.178 On the other hand, there is no longer a development requirement regarding “(i) all languages commonly used by communities in South Africa, including German, Greek, Gujurati, Hindi, Portuguese, Tamil, Telegu and Urdu; and

120

Minority Protection in Post–Apartheid South Africa

(ii) Arabic, Hebrew, Sanskrit and other languages used for religious purposes in South Africa.”179 This second change was justified by the ANC because it would concern languages that are mainly spoken in Europe and Asia where they are sufficiently developed.180 These considerations of proportionality are reasonable, even more so because the Board still has an obligation to promote and ensure respect for these languages. The symbolical message of this reduction did provoke resentment in some Indian circles,181 underscoring the high sensitivity of the status of a language for its speakers. Finally, the right to education, and more specifically the issue of language in education and single-medium institutions, proved to be the greatest stumbling block of all and was only resolved 7 May 1996, the day before the adoption of the (first version of ) the 1996 Constitution.182 Eventually, the discussions turned around the issue of single-medium institutions, as pressed by the NP (and the FF), which was (after many rounds of negotiations) integrated, to a certain extent, in the subsection on the medium of instruction. The starting point of the controversy around the education provision had been the NP’s proposal for a right “to educational institutions based on a common culture, language or religion, provided that there shall be no discrimination on the ground of race and, provided further that the state shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it has been established on the basis of a common language, culture or religion.”183 Whereas such a right to state-funded schools with a distinctive linguistic, cultural, or religious character was considered to be imperative by the NP to protect and promote the Afrikaner culture and language, while offering the same advantage to other minorities, this was completely unthinkable for the ANC as it would imply a return to Verwoerdian (apartheid) practices.184 The judgement of the Constitutional Court in the Gauteng education case of 4 April 1996 had clarified that the analogous section of the 1993 Constitution185 (which did not contain the explicit words “at their own expense”) reflected the appropriate option about state obligations regarding the funding of minority schools.186 According to the Constitutional Court, the state has, under section 32(c), 1993 Constitution, a mere negative obligation of noninterference regarding private efforts to that effect.187 The Court seems to suggest that the positive state obligation to provide equal access to educational institutions and instruction in the language of choice where reasonably practicable188 would “cater for the full gamut of an individual’s educational interests.”189 A further interest to set up minority institutions should be allowed under certain conditions but without an ipso facto state obligation to support this in a positive way.190 This judgement influenced the eventual formulation of the right to set up independent educational institutions, in the sense that the final Constitution makes explicit that this is “at their own expense” and that two other provisos are added to the one prohibiting racial discrimination.191 The Constitutional Court had indeed held that the interim constitution also implied that these independent institutions should be registered with the state and should live up to certain minimum

Negotiations Leading up to the 1996 Constitution

121

standards.192 The outcome of this case “increased anxiety about the formulation of the education clause on the side of the Afrikaners.”193 Subsequently, the NP insisted on the need for a right to single-medium institutions in the public education sector, which indicated a shift of emphasis in its claim regarding the right to education. The ANC was not open to any concessions in this regard and the NP finally agreed to a “much diluted version” of its original proposal in the provision on the medium of instruction:194 Everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practicable. In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including single medium institutions, taking into account (a) equity; (b) practicability; and (c) the need to redress the results of past racially discriminatory laws and practices.195 (italics added)

Although the NP’s feeling in hindsight was that “they have lost this one,”196 Kriel considers that this subsection makes “express concessions to minority interests.”197 The factors the state is to take into account when implementing the right to receive education in the official language or languages of choice apparently have some but not much potential for single-medium Afrikaans institutions. Although the third factor does not seem to be conducive to a choice for single-medium Afrikaans institutions, this might be balanced out in certain circumstances by the “equity” factor—for example, in areas where the majority of the people speaks Afrikaans. Furthermore, and in view of the collective aspect of an educational institution of this kind, section 31 and its recognition and protection of the collective dimension of the rights of persons belonging to (cultural, religious and) linguistic communities, can arguably also be used to canvass claims of single-medium institutions for linguistic communities. At the same ultimate session where section 29 (2) was agreed, the DP also proposed an additional subsection,198 which would provide for the possibility of state subsidies for independent educational institutions, as allowed for in section 29 (3). This proposal was readily accepted by the ANC and welcomed by the NP199 since it carries the possibility for their “educational institutions based on a common language, culture or religion” to be private but nevertheless state funded. In the end, the further implementation of the education clause, its application and eventual adaptation, will demonstrate to what extent this provision effectively provides for minorities and accommodates South Africa’s overall population diversity.200 THE ADOPTION OF THE 1996 CONSTITUTION AND THE CERTIFICATION PROCESS The Constitution was adopted 8 May 1996 in an atmosphere of complete exhilaration and joy. As the IFP had walked out of the negotiations in February 1995, it did not participate in the voting, but the ANC, NP, DP, and PAC voted

122

Minority Protection in Post–Apartheid South Africa

in favor of the Constitution, thus providing the required two-thirds majority.201 The Freedom Front abstained because single-medium institutions were not provided for sufficiently,202 thus indicating that in their view certain minority concerns were not adequately met. It seems important to underline that even though several provisions related to minority protection came about due to political parties that represent (at least in part) the particularly vocal Afrikaner minority, these provisions can be used more generally and have the potential to contribute to the accommodation of the country’s entire population diversity.203 The speeches of several members of the CA at the second reading of the Constitution preceding its adoption emphasize different characteristics of the new Constitution. Often recurring themes are the central value of equality, the importance of nation building, of accommodation of diversity, of “government closer to the people,” and of the importance of the rule of law and the concomitant restriction of government abuse. President Mandela’s “Address to the Constitutional Assembly on the Occasion of the Adoption of the New Constitution”204 touches upon all the main features of the constitution such as democracy and majority rule with a host of checks and balances. These include rights for individuals and for communities/minorities, devolution of power to lower levels of government, guarantees of open and accountable government, and the recognition of the status of traditional leaders. Overall, he extensively highlights the theme of unity in diversity, as exemplified by the following statement: “Today we affirm in no uncertain terms that we are mature enough to derive strength, trust and unity from the tapestry of language, religious and cultural attributes that make up our nation.” Certification of the Constitution on South Africa on 8 May 1996 In view of the compromise reached during the first round of negotiations, the constitution as developed by the Constitutional Assembly would need to comply with the thirty-four Constitutional Principles (CPs) enumerated in the interim Constitution and would only come into effect if and when the newly established Constitutional Court certified that its provisions effectively complied with all thirty-four Constitutional Principles.205 It has already been pointed out that this compromise was reached to induce the previous ruling minority to relinquish its power206 and, consequently, many of these Constitutional Principles can to some extent be related to minority protection. It is important to underline, however, that these principles are not merely a reflection of the demands of (a section of) the Afrikaner minority and that none of the principles can be used to further attempts to hold on to apartheid privileges. Many of these principles reflect the understanding that the country’s population diversity, in all its dimensions, should be appropriately accommodated, either expressly (as in Constitutional Principles XII, XIII and XXXIV and the several references to [substantive] equality) or implicitly (as in the Constitutional Principles dealing with the provincial and local tier

Negotiations Leading up to the 1996 Constitution

123

of government, and also the Constitutional Principles reflecting limitations on pure majority rule, like Principles II, IV and XV).207 To understand the exact value and nature of the Constitutional Court’s pronouncements in the certification judgement, it is important to know the exact nature of its certification function. The Court underlines in this regard that its function is not political but merely judicial, in that it has “no power, no mandate and no right to express any views on the political choices made by the CA in drafting the NT [new text], save to the extent that such choices may be relevant either to compliance or non-compliance with the CPs.”208 Nevertheless, this limitation does not diminish the importance of the fact that the Constitutional Court has the power, as an independent body, to send the Constitution back to the CA if it decides that the text does not comply with all thirty-four Constitutional Principles. Such a power implies a major guarantee that the new and so-called “final” Constitution will effectively satisfy these standards. In view of the length of the certification judgement (about 320 pages) and the focus of this work, it is neither feasible nor appropriate to give an exhaustive analysis of the entire certification exercise. Consequently, only those remarks of the Court of specific relevance from the angle of minority protection will be dealt with.209 It is generally understood, and even confirmed by the certification judgements of the Constitutional Court, that the Constitutional Principles are not meant to continue to be of relevance beyond certification.210 Furthermore, section 242 of the 1996 Constitution repeals the interim Constitution, the fourth schedule of which contained the Constitutional Principles. Consequently, they would not have any guiding and restrictive role to play for any future amendments of South Africa’s Constitution.211 It can be argued that section 1 of the 1996 Constitution, and the basic values of the new constitutional order it enshrines, should take over the guiding role of the Constitutional Principles for further amendments. In this respect it should be underlined that section 1 is accorded special protection against constitutional amendment in the 1996 Constitution as section 74 (1) requires demanding “special majorities” in this respect.212 Although section 1213 enshrines the crucial values of human dignity, equality, human rights and freedoms, democracy, and the rule of law, it does not expressly deal with all the aspects covered by the Constitutional Principles.214 Nevertheless, these other principles, like the ones dealing with cultural and linguistic diversity, traditional leaders, self-determination, and the form of state might be protected by giving a purposive interpretation to section 1.215 The Constitutional Principles and the certification exercise are in any event very important for “understanding the new constitutional framework and thinking behind the mechanisms for the protection of minority rights and interests.”216 The Constitutional Principles and the ensuing certification process have indeed been of vital importance for South Africa’s transformation to a democratic state, and they provide (further) insights about the features that were felt essential for the constitutional dispensation in post-apartheid South Africa. Finally, the certification judgements do not only contain interesting interpretations of the

124

Minority Protection in Post–Apartheid South Africa

Constitutional Principles but also of several provisions of the 1996 Constitution. These interpretations will be authoritative in the future as the Court has the final say in constitutional matters.217 The Constitutional Court holds in the first certification judgement that “the NT [new text] cannot be certified as it stands because there are several respects in which there has been non-compliance with the CPs. . . . Yet, in general and in respect of the overwhelming majority of its provisions, the CA has attained that goal” (of measuring up to predetermined requirements).218 In its conclusion the Court also mentions that “the instances of non-compliance . . . although singly and collectively important, should present no significant obstacle to the formulation of a text which complies fully with those requirements.”219 The Court indicates eight areas of noncompliance220 with the Constitutional Principles. For purposes of this work, the most relevant ones are that the threshold for constitutional amendments should be higher, especially for the chapter with the Bill of Rights;221 that there was not enough detail regarding local government in the Constitution;222 and that the provinces’ powers and functions are substantially weaker than and inferior to those under the interim Constitution.223 It is obvious that requirements of special majorities for amendments to the basic document of a state’s legal order provide a degree of protection for minorities against blatant “majority rule.” The degree of autonomy of local and provincial government and the concomitant realization of “government closer to the people” also has potential for the accommodation of population diversity. In this respect, it is appropriate to recall that the relevant Constitutional Principle regarding provincial autonomy was a last-minute addition to placate the IFP in its quest for a high degree of autonomy for Kwazulu-Natal224 with its majority of Zulu. In view of the fact that issues related to federalism and the form of state are rather indirect ways of approaching the accommodation of population diversity in South Africa, it seems sufficient to point to the underlying idea of the relevant Constitutional Principles and their evaluation by the Court. According to the Court, the Constitutional Principles on local government effectively required a better conceptualized vision of that sphere of government.225 The Constitutional Principle demanding that the powers and functions of the provinces in the final Constitution should not be materially weaker than the ones in the Interim Constitution (IC) can be interpreted as implying that the degree of provincial autonomy in the interim Constitution is somehow important for the future viability of South Africa and should thus be maintained.226 The Court also made various interesting statements in response to other claims of non-compliance with Constitutional Principles, which are more directly related to issues of minority protection and accommodation of the country’s population diversity. Some of these pertain to the status of the languages spoken in South Africa, others to the issue of the choice of medium of instruction, the status of traditional authorities, customary law, and self-determination. With respect to the status of official languages, an objection was raised that none of the Indian languages spoken in South Africa was given such a status.

Negotiations Leading up to the 1996 Constitution

125

The Court rejected the argument and underscored that “the object of CP XI is to provide protection for the diversity of languages, not the status of any particular language or languages. The granting of official status to languages is a matter within the sole responsibility of the CA, and it is the CA’s considered determination in that regard that is reflected in NT 6(1).”227 The Court also remarked that linguistic diversity is recognized and promoted by the other subsections of section 6,228 for example in that the Pan South African Language Board is required to “promote and ensure respect for . . .; Gujurati, Hindi, . . . Tamil, Telegu and Urdu and . . . Sanskrit,”229 which are the principal Indian languages spoken in South Africa.230 Another complaint about the language clause is more specifically related to the status of Afrikaans, which was allegedly diluted under the 1996 Constitution due to the dropping of the non-diminishment requirement. In view of the fact that no Constitutional Principle prohibited altering the status of Afrikaans, the Court rejected this complaint and added that: “[i]n any event, the NT does not reduce the status of Afrikaans relative to the IC: Afrikaans is accorded official status in terms of NT 6(1). Affording other languages the same status does not diminish that of Afrikaans.”231 The absence of a non-diminishment requirement does imply a reduction of the constitutional rights of that language since 1910, which is not unreasonable or unjust. In this respect it can also be mentioned that despite its underlying intention, even the obligation for national and provincial governments to use more than one official language as language of government does not guarantee that this will include Afrikaans.232 The two objections leveled against section 29 of the 1996 Constitution targeted the fact that the right of instruction in the language of choice was reduced under the 1996 Constitution. Although the Court underlines that its task is not to compare the new text with the interim Constitution but with the thirty-four Constitutional Principles, it does point out that the relevant subsection imposes a clear objective duty on the state to implement the right to receive education in the official language or languages of choice, which did not exist under the 1993 Constitution.233 It has already been mentioned that the relevant provisions in the 1996 Constitution implied a rather tentative recognition of both traditional leadership and customary law, as the former was dependent on the goodwill of Parliament, whereas the latter was clearly made subject to the Bill of Rights.234 The IFP filed a complaint in this regard, based on Constitutional Principle XIII, because the wording of that Constitutional Principle would suggest “that a constitutionally entrenched function is called for.”235 The Court, however, holds that the express wording of the relevant Constitutional Principle did not require such “express institutionalization of governmental powers and functions for traditional leaders.”236 It concludes furthermore that: the NT complies with CP XIII by giving express guarantees of the continued existence of traditional leadership and the survival of an evolving customary law. The institution,

126

Minority Protection in Post–Apartheid South Africa

status and role of traditional leadership are thereby protected. They are protected by means of entrenchment in the NT and any attempt at interference would be subject to constitutional scrutiny. The CA cannot be constitutionally faulted for leaving the complicated, varied and ever-developing specifics of how such leadership should function in the wider democratic society, and how customary law should develop and be interpreted, to future social evolution, legislative deliberation and judicial interpretation.237

Consequently, it is clear that according to the Court, the constitutional provisions on traditional leadership sufficiently protect the existence of traditional leadership, while the particular status and role would be determined by legislation. The legislator has indeed a virtually unfettered discretion regarding the content of that legislation, as long as it does not abolish the institution. Similar considerations apply to customary law.238 Finally, the first certification judgement of the 1996 Constitution also contains some revealing statements on self-determination, the meaning of the two relevant Constitutional Principles, and the degree of their effective implementation in the 1996 Constitution. The Court responds to the contention that Constitutional Principle XXXIV establishes an expectation about the creation of a Volksstaat among a significant number of Afrikaners, which the 1996 Constitution does not realize,239 by underlining that the principle’s basic thrust is clearly permissive and not obligatory.240 It asserts that “[i]t is not necessary for us to decide whether the NT is obliged to keep the idea of territorial self-determination alive. The fact is that the CA chose to do so in terms of NT 235, which ensures that the permissive door opened by the CP is kept ajar”241 and confirms in this way the open-door tactic of section 235 of the new text. Another important statement relating to the implementation of that Constitutional Principle is that “it is difficult to interpret CP XXXIV as permitting the denial of the fundamental human rights of any persons living in such entity, let alone requiring the exclusion of the Bill of Rights,”242 in that it seems to require some kind of guarantee of protection for the “minority within the minority.” The Court also postulates that Constitutional Principle XII’s collective rights of self-determination are recognized and protected in section 31 of the 1996 Constitution “which protects cultural, religious and language communities.”243 In this way the South African Constitutional Court confirms that minority rights or provisions aimed at minority protection are a form of self-determination. In view of the similarities between section 31 of the 1996 Constitution and article 27 ICCPR it is furthermore interesting to remark that the Court rejected as without substance the complaint that the provision of section 31 is framed in negative and not positive terms. By considering the negative formulation of section 31 irrelevant to assess its compliance with the positive wording of Constitutional Principle XII, the Court’s reasoning is in line with the trend to recognize that article 27 ICCPR, despite its negative framing, does imply positive state obligations towards the minorities under their jurisdiction. By way of overall evaluation of this first certification judgement of the Constitutional Court, it can be argued that the Court’s interpretation of (some of) the

Negotiations Leading up to the 1996 Constitution

127

“relevant” Constitutional Principles underscores the focus and/or the impact of these principles on accommodation of population diversity. The Court’s interpretation of the Constitutional Principles also reveals that this accommodation is not meant to be unlimited and is circumscribed by the central tenets of substantive equality and democracy. Whereas both considerations have an impact on the degree of constitutional recognition of traditional leadership, the goal and limitation of substantive equality also influences (inter alia) the degree to which different ways of life and legal systems can be recognized. At the same time the Court clarifies that provisions aimed at securing the accommodation of population diversity/minority protection should not be abused to attempt to hold on to privileges obtained during apartheid. Regarding the status of the languages spoken in South Africa, it also points out that the goal of recognizing and protecting linguistic diversity does not require all languages to be treated identically or formally as equal. The Court recognizes in this way that there is some scope for the legislature/constitutional assembly to determine the contents of a language policy, as long as that would contribute to the protection and promotion of linguistic diversity. More generally, it should be emphasized that several statements of the Court refer to the appropriateness and the need for legislation to determine (more) detailed “implementation” rules. These statements confirm the importance of the actual implementation and application of the often vague and general constitutional provisions for the assessment of the Constitution’s contribution to minority protection and accommodation of population diversity. At the same time, it is obvious that South Africa’s specific historical, demographic, and political circumstances can and should be taken into account properly in this implementation stage. The Required Constitutional Amendments and the Second Certification Judgement The reactions of all political parties to the first certification judgement were remarkably positive, and it was described as a “landmark on the road to constitutionalism.”244 The Constitution was consequently sent back to the reconvened CA, which worked swiftly to address the eight shortcomings pointed out by the Court.245 In view of the time constraints under which the Constitutional Assembly had to work246 and the assessment of the Constitutional Court, it was easily agreed upon not to reopen issues on which negotiated compromises had been reached in the past.247 Although the IFP initially attended as observer, it did not ultimately participate in the voting on the Constitution on 11 October 1996. The final results were no different from the adoption vote on 8 May, and the amended text was subsequently sent to the Constitutional Court for certification.248 In view of the limited number of changes that the Court had indicated as necessary in its first certification judgement and the willingness of all parties to work towards a constitution that would be certifiable,249 the Constitutional Court

128

Minority Protection in Post–Apartheid South Africa

was able to certify the amended text of the 1996 Constitution.250 The Court was still quite critical of the provincial powers and functions, holding that they were still weaker than the corresponding ones in the interim Constitution.251 Because the amendments to the override clause (regulating conflicts between national and provincial legislation regarding concurrent competencies) made it less in favor of the national sphere than the first version, the Court nevertheless concluded that this reduction of powers and functions was not substantial and that Constitutional Principle XVIII.2 was thus complied with.252 Furthermore, the Court made some interesting remarks on the type of selfdetermination aimed at by Constitutional Principle XII and the kind of protection for a traditional monarch as recognized in a provincial constitution under Constitutional Principle XIII.2. In view of the override provision that regulates conflict between national legislation and a provincial constitution, the Kwazulu-Natal government formulated the objection that the “protection” requirement regarding provisions in a provincial constitution on a traditional monarch was not fulfilled. The Court rejected this argument and underscored in this respect that what is required by Constitutional Principle XIII.2 is that “the institution of the monarchy should be given the recognition and protection that it needs to enable it to carry out its traditional role and to maintain its status and authority, consistent with the constraints inherent in a republican and wholly democratic constitutional order.”253 The necessary protection would be sufficiently provided for by section 143(1) in combination with section 74(3)’s requirement of special majorities for amendments to the constitutional provision that enables provincial constitutions to provide for the status and role of a traditional monarch.254 Finally, the Court also clarifies Constitutional Principle XII to some extent, emphasizing its associational or group-related dimension.255 Indeed, according to the Court “[h]aving regard to the CPs as a whole, the ‘collective rights of selfdetermination’ mentioned in Constitutional Principle XII are associational individual rights, namely those rights which cannot be fully or properly exercised by individuals otherwise than in association with others of like disposition.”256 This statement allows Constitutional Principle XII to be related to the group-specific and collective rights that are often used for members of minorities, like article 27 ICCPR. The Court also confirms that “[t]he objects of AT [amended text] 31 rights (in many respects similar to article 27 ICCPR) do not differ from the objects of CP XII rights of self-determination.”257 Nevertheless, the Court also places Constitutional Principle XII in the wider human rights realm as it points out that the Bill of Rights protects a range of individual rights of association such as freedom of association, freedom to form and participate in the activities of political parties, and section 30 rights to use the language and to participate in the cultural life of one’s choice. After pointing out that even an association acting in the interest of its members and a person acting in the interest of a group have standing under section 38 of the 1996 Constitution, the Court concludes that “[t]he clear protection of rights of association coupled with the generous standing provisions protect the rights of collective

Negotiations Leading up to the 1996 Constitution

129

self-determination stipulated by the CP for those communities not expressly protected by AT 31.”258 According to the Constitutional Court the requirements of Constitutional Principle XII are met,259 since “CP XII does not indicate how the collective rights of self-determination are to be recognized and protected. That was a matter for the CA to decide.”260 According to the Court, the concept of self-determination in this principle is circumscribed by Constitutional Principle I in that any form of external selfdetermination is excluded.261 In this way, the Court implicitly determines that Constitutional Principle XII deals with the internal right of self-determination and also that internal self-determination is intrinsically related to human rights and “minority rights.” Constitutional Principle XII and its interpretation by the Constitutional Court seem to reveal a preference for collective rights over real group rights, which is obviously related to apartheid’s abuse of the concept.262 Regarding the evaluation of the second certification judgement, analogous remarks to the ones for the first certification judgement are appropriate. The judgement highlights the degree of accommodation of South Africa’s population diversity provided for by the CPs and “realized” in the 1996 Constitution, while being careful to mention certain restrictions in this regard and also to highlight that certain choices should be made by the legislator/Constitutional Assembly. NOTES 1. It should be noted that the various issues are not treated in the same order as the analysis of the 1993 Constitution, but this is mainly due to the fact that I have chosen to address the issues in increasing order of sensitivity for this evaluation. 2. I. Currie, “Minority Rights: Culture, Education and Language,” in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, Kenwyn, Juta, loose-leaf, 35.1. 3. Ibid., 35.1. As I witnessed and monitored the constitutional negotiation process for the Flemish Government between February and June 1996, I will also refer to personal experiences and observations. The three main deadlocks right until the end concerned the status of the various languages spoken in South Africa, the education clause on language in education and the property clause. 4. X, Constitutional Talk Number 1: 13–26 January 1995, [www.constitution.org.za/ talk1_95.html], 4. 5. Ibid., 6–7. 6. Ibid., 2–3. 7. Ibid., 10–11. 8. Ibid., 3. 9. Currie, “Minority Rights: Culture, Education and Language,” 35.5. 10. X, Constitutional Talk Number 1, 3–4. 11. See also X, Constitutional Talk Number I, 3. 12. According to Marcus and Spitz, hate speech can be broadly defined as “expressive conduct which insults a racial or ethnic group, whether by suggesting inferiority or by effecting exclusion. This definition would include both the virulent personal epithet and political speeches, tracts or other media propaganda addressed to the public more generally. A narrow definition would view hate propaganda as expression

130

13. 14.

15. 16. 17. 18. 19.

20. 21. 22.

23. 24. 25.

26. 27. 28.

Minority Protection in Post–Apartheid South Africa

which constitutes an incitement, particularly to racial hatred” (G. Marcus & D. Spitz, “Expression” in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, Kenwyn, Juta, loose-leaf, 20.47–20.48). X, Constitutional Talk Number 1–9 February 1996, [www.constitution.org.za/talk/ 1pg4-1.html], 1. Steenkamp emphasizes in this respect that the absence of such a hate speech clause in the 1993 Constitution was severely criticized. This is presumably related to irreconcilable differences of opinion on the appropriate way to restrict hate speech (A.J. Steenkamp, “The South African Constitution of 1993 and the Bill of Rights: An Evaluation in Light of International Human Rights Norms,” H.R.Q. 1995, 110–111). L. Johannessen, “A Critical View of the Constitutional Hate Speech Provision,” South African Journal of Human Rights 1997, 138–139. X, Constitutional Talk Number 1–9 February 1996, [www.constitution.org.za/talk/ 1pg4-1.html], 1. X, Constitutional Talk Number 1–9 February 1996, [www.constitution.org.za/talk/ 1pg5-2.html], 1. See inter alia article 20(2) ICCPR, article 4 International Convention on the Elimination of all forms of Racial Discrimination. X, Constitutional Talk Number 1–9 February 1996, [www.constitution.org.za/talk/ 1pg5-2.html], 1. The DP’s views that a hate speech section should at least be subject to a harm test [www.constitution.org.za/talk/2pg3-1html], 1) were eventually accommodated. According to Johannessen, however, the clause goes beyond the requirements of international law: “[I]t appears that s 16(2) has been modeled closely on the provisions found in international law. However, by granting constitutional immunity the section goes beyond what is required from international human rights instruments. It does so by failing to incorporate safeguards against over-breadth and abuse inherent in international hate speech provisions” (Johannessen, “A Critical View of the Constitutional Hate Speech Provision,” 142). See also Marcus & Spitz, “Expression,” 20.48. Johannessen, “A Critical View of the Constitutional Hate Speech Provision,” 140–141. See also Marcus & Spitz, “Expression,” 20.48. This issue will not be taken up further in itself, with the exception of a short reference in the review of the importance and continuing impact of “race” and “ethnicity” since 1994. V. Sacks, “Multiculturalism, Constitutionalism and the South African Constitution,” Public Law. 1997, 678. See also X, Constitutional Talk Number 7–19 May 1995, 1–2. X, Constitutional Talk Number 7–19 May 1995, [www.constitution.org.za/talk/7pg31.html], 1. X, Constitutional Talk Number 4–7 September 1996, [www.constitution.org.za/ talk4_96.html], 1. See also I. Currie, “Indigenous Law” in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, Juta, Kenwyn, loose-leaf, 36.6. Currie, “Indigenous Law,” 36.1–36.2. X, Constitutional Talk Number 7–19 May 1995, 1–2. Currie, “Indigenous Law,” 36.2; A. Sachs, Advancing Human Rights in South Africa, Cape Town, University Press, 1992, 81; J.J. Van Wyk, Traditional Leaders and Authorities—from Pre-Colonialism to the 1996 Constitution: Evolution of Politics, Interests and Principles, Pretoria, Department of Constitutional Development, 1997, 75.

Negotiations Leading up to the 1996 Constitution

131

29. See also G.F. Houston & S.P. Fikeni, “Constitutional Development and the Issue of Traditional Leadership in Rural Local Government in South Africa,” paper presented at an international conference on Traditional Leadership and the New South African Constitution (April 1995), unpublished but on file with the author, 2. 30. Currie, “Indigenous Law,” 37.1; B. Oomen, “Group Rights in Post-Apartheid South Africa: the Case of the Traditional Leaders,” paper presented at IUAES Conference in Williamsburg, Virginia, 26 July–1 August 1998, unpublished but on file with the author, 12. 31. Chairperson of the Constitutional Assembly, Ex Parte in Re Certification of the Amended Text of the Constitution of the Republic of South Africa 1996, Constitutional Court of South Africa, CCT 37/95, 4 December 1996, 1997 (2) SA 97 (CC), 1997 (1) BCLR 1 (CC), § 197. 32. Section 211(1), 1996 Constitution. 33. Section 212(2), 1996 Constiution of South Africa. 34. The continuation of the regulation in the interim Constitution regarding ex officio membership in local government for traditional leaders until the next general elections is provided for in one of the transitional provisions in Schedule 6 of the 1996 Constitution, more specifically section 26(1)(b). See also Currie, “Indigenous Law,” 36.12. 35. CONTRALESA requested a last-minute consultation with constitutional negotiators in which it reiterated its demands for more extensive recognition of the status and role of traditional leaders. The traditional leaders demanded that the provisions of the interim constitution should be retained and improved and that the Bill of Rights would not apply horizontally (X, Constitutional Talk Number 3–22 April 1996, [www.constitution.org.za/talk/3pg6-4.html], 1). 36. Currie, “Indigenous Law,” 36.16–36.17; Oomen, “Group Rights in Post-Apartheid South Africa: The Case of the Traditional Leaders,” 12–13, 19–20; Sacks, “Multiculturalism, Constitutionalism and the South African Constitution,” 678–680; H.A. Strydom, “Minority Rights Issues in Post-Apartheid South Africa,” Loyola of Los Angeles International & Comparative Law 1998, 905–906. 37. See also Currie, “Indigenous Law,” 36.21–36.24. 38. Cf. inter alia Strydom, “Minority Rights Issues in Post-Apartheid South Africa,” 906. 39. The National Council of Traditional Leaders was renamed by the Council of Traditional Leaders Amendment Act (Act no 85 of 1995) to National House of Traditional Leaders. 40. See inter alia X, Constitutional Talk Number 8 June–29 June 1995, [www.constitution. org.za/talk8_95.html], 1–2; X, Constitutional Talk Number 30 June–10 August 1995, [www.constitution.org.za/talk9_95.html], 8–9. 41. See Constitutional Subcommittee Session during the night of 18–19 April 1996. The relevant issue of Constitutional Talk does not refer to the agreement that was reached on the preamble, but this statement is based on my personal experience of attending that session. 42. Section 15(2), 1996 Constitution: “Religious observance may be conducted at state or state-aided institutions, provided that—(a) those observances follow rules made by the appropriate public authorities; (b) they are conducted on an equitable basis; and (c) attendance at them is free and voluntary.” There was some debate about whether “appropriate public authority” should not be replaced by the NP’s proposal “authority in immediate control of that institution” so as to prevent state interference, see debates in Constitutional Subcommittee on 12 March 1996.

132

Minority Protection in Post–Apartheid South Africa

43. N. Smith, “Freedom of Religion under the Final Constitution,” South African Law Journal 1997, 221. 44. Cf. X, Constitutional Talk Number 8 June–29 June 1995, [www.constitution.org.za/ talk8_95.html] 1. 45. X, Constitutional Talk Number 7–19 May 1995, [www.constitution.org.za/talk/7pg61.htm], 1. 46. Section 36 (1), 1996 Constitution. See also S. Woolman, “Out of Order? Out of Balance? The Limitations Clause of the Final Constitution,” South African Journal of Human Rights 1997, 105. 47. Section 33 (1)(a) and (b), 1993 Constitution. 48. Woolman, “Out of Order? Out of Balance? The Limitation Clause of the Final Constitution,” 107. 49. Ibid., 110. 50. See in this respect the holding of the Constitutional Court in S v Makwanyane and Another, CCT 3/94, 6 June 1995, § 104. For some critical remarks on the balancing approach to limitation analysis see Woolman, “Out of Order? Out of Balance? The Limitation Clause of the Final Constitution,” 113–119. 51. Smith, “Freedom of Religion under the Final Constitution,” 222. 52. X, Constitutional Talk Number 8–29 June 1995, [www.constitution.org.za/ talk8_95.html], 2–4. 53. X, Constitutional Talk Number 2–8 March 1996, [www.constitution.org.za/talk/ 2pg2-1.html], 1. See also L.S. Underkuffler-Freund, “Religious Guarantees in a Pluralistic Society: Values, Problems and Limits,” SA Public Law 1997, 51. 54. Personal observations during the Constitutional Subcommittee’s session of 25 April 1996. 55. Section 167 (3)(a), (4)(b) and (5), 1996 Constitution. 56. Cf. Smith, “Freedom of Religion under the Final Constitution,” 222–223. 57. Another issue that proved intractable for many months was related to the appointment procedures for judicial officers. Although there seemed a general agreement on the need for the judiciary to “reflect broadly the racial and gender composition of South Africa” (section 174 (2), 1996 Constitution), there was much debate on the appropriate appointment procedure that would achieve just that. Eventually, discussions centered around the composition and involvement of a Judicial Service Commission that would play an important role in this procedure (sections 174–178, 1996 Constitution). A restructuration of the judiciary so that it would broadly reflect the South African population was also felt to be necessary because the justice system was severely discredited under apartheid as it was generally perceived as furthering the apartheid policies and also as “being biased against people of colour” (R. Koen, “The Language of Racism and the Criminal Justice System,” South African Journal of Human Rights 1995, 102). In this respect making the judiciary more generally representative of the South African society is felt to counter at least partially the “legitimacy crisis facing the judicial system in South Africa” (T.S. Robinson, “Race, Rights and Representation in a Cape Town Magistrate’s Court: Is a Colour Blind Constitutional Discourse Possible in Post-Apartheid South Africa?” South African Journal on Human Rights 1997, 594). 58. The National Party decided to withdraw from the Government of National Unity (GNU) from 30 June 1996 onwards, not only because of their alleged wish to secure a genuine democracy by offering a strong and vigilant opposition, but also because “[t]he

Negotiations Leading up to the 1996 Constitution

59. 60. 61.

62.

63. 64. 65. 66.

67. 68. 69. 70.

133

new constitution contains no provision for the continuation of any form of joint decision-making in the executive branch of government” (Statement by Mr. F.W. De Klerk, leader of the National Party, 9 May 1996). Although the IFP had already decided to withdraw from the Constitutional Assembly process in February 1995 (because its demands for international mediation on certain issues were not met), its submissions were still considered by the relevant Committees (X, Constitutional Talk Number 9 1995, [www.constitution.org.za/talk9_95.html], 2) and it did not withdraw from the GNU. Personal observations when attending the Session of the Constitutional Subcommittee 12 February 1996. Sections 57 (2)(b) and 70 (2)(c), 1996 Constitution of South Africa for the National Assembly and the National Council of Provinces respectively. Several Constitutional Principles can furthermore be seen in terms of securing political participation for certain population groups that wish to mobilize under the banner of a political party. Constitutional Principle XIV ensures that participation of minority political parties will be catered for in a manner consistent with democracy and should be seen in combination with CP VIII’s requirement that there should be representative government embracing “in general, proportional representation.” Furthermore, at the same time there was, as a result of bilaterals between the ANC and the NP, a proposal to include a section which would enable minority political parties to refer a bill to the Constitutional Court and obtain an abstract review of its constitutionality. Although some concerns were voiced to prevent abuses that might be aimed at stalling the development and implementation of legitimate government policies with which a certain party might not agree on political terms, eventually the parties could agree to a “suitably” qualified provision. Section 80 of the 1996 Constitution, entitled “Application by members of National Assembly to Constitutional Court” does not mention the minority political parties explicitly. It is, however, necessary but sufficient that at least one third of the members of the National Assembly support the application. To avoid abuses of this right, which might result in a temporary declaration that (a part of-) an Act is of no force (subsection 3), it is stipulated in subsection 4 that the Constitutional Court may order the applicants to pay costs if the application was unsuccessful and did not have a reasonable chance of success. See also S.J. Anaya, “On Justifying Ethnic Group Rights” in I. Shapiro & W. Kymlicka (eds.), Ethnicity and Group Rights, Nomos 39, New York, New York University, 1997, 224. X, Constitutional Talk Number 13–26 January 1995, [www.constitution.org.za/ talk1_95.html], 3. X, Constitutional Talk Number 8–29 June 1995, [www.constitution.org.za/ talk8_95.html], 10. Ibid. X, Constitutional Talk Number 1–9 February 1996, [www.constitution.org.za/talk/ 1pg4-2.html], 1; X, Constitutional Talk Number 2–8 March 1996, [www.constitution. org.za/talk/2pg2-2.html], 1. X, Constitutional Talk Number 2–8 March 1996, [www.constitution.org.za/talk/ 2pg2-2.html], 1. Section 9 (3), 1996 Constitution. Section 9 (4), 1996 Constitution. Du Plessis and Others v De Klerk and Others, Constitutional Court of South Africa, CCT 8/95, 15 May 1996, 1996 (3) SA 850 (CC), 1996 (6) BCLR 775 (CC). For a brief

134

71.

72. 73. 74. 75. 76.

77. 78.

79.

80.

81. 82. 83.

84.

Minority Protection in Post–Apartheid South Africa

discussion of this case see inter alia K. Henrard, “Het Grondwettelijk Hof van Zuid Afrika: Samenstelling, Procedure, en Belangrijke Ontwikkelingen in de Jurisprudentie,” Jura Falconis 1996, 863. See S. Woolman & D. Davis, “The Last Laugh: Du Plessis v De Klerk, Classical Liberalism, Creole Liberalism and the Application of Fundamental Rights under the Interim and the Final Constitution,” South African Journal of Human Rights 1996, 404. Section 8(1), 1996 Constitution. The corresponding provision in the interim Constitution required merely the courts “to have regard for international law” (section 35 (1) of the 1993 Constitution). Section 39(2), 1996 Constitution. Section 8 (2), 1996 Constitution. See also M. Loban, “Un Accord Négocié: Le Processus Constitutionnel en Afrique due Sud depuis 1991,” Revue de Droit Public 1997, 107. A.J. Kerr, “The Bill of Rights in the New Constitution and Customary Law,” South African Law Journal 1997, 350; S. Woolman & D. Davis, “The Last Laugh: Du Plessis v De Klerk, Classical Liberalism, Creole Liberalism and the Application of Fundamental Rights under the Interim and the Final Constitution,” South African Journal of Human Rights 1996, 381. See also I.M. Rautenbach, “The Bill of Rights Applies to Private Law and Binds Private Persons,” Tydskrif vir die Suid-Afrikaanse Reg 2000, 300–302. J. De Waal & I. Currie, “Application of the Bill of Rights” in J. De Waal et al. (eds.), The Bill of Rights Handbook 1998, Kenwyn, Juta, 1998, 23–24. Ibid., 32. Although Sprigman and Osborne are in general against an extensive direct horizontal applicability of the Bill of Rights, they acknowledge that the Constitutional Court will have the final say in this regard since the Final Constitution merely permits but does not require horizontal application (C. Sprigman & M. Osborne, “Du Plessis Is Not Dead: South Africa’s Final Constitution and the Application of the Bill of Rights to Private Disputes,” South African Journal of Human Rights 1999, 35–36). See inter alia Currie, “Indigenous Law,” 36.29. See also H. Cheadle & D. Davis, “The Application of the 1996 Constitution in the Private Sphere,” South African Journal of Human Rights 1997, 57–60. X, Constitutional Talk Number 1–9 February 1996, [www.constitution.org.za/talk/ 1pg4–2.html], 1; X, Constitutional Talk Number 2–8 March 1996, [www.constitution. org.za/talk/2pg2-2.html], 1. Section 9 (2), 1996 Constitution. Cf. J. Kentridge, “Equality,” 14.35–14.36. This can be compared to the situation in the United States. Anaya underscores in this respect indeed that “[i]n recent years affirmative action programs have come under attack, but the criticisms are mostly aimed at the methodology of affirmative action and not its core underlying objectives. . . . Largely absent from the debate over affirmative action, however, is serious questioning of the need to roll back patterns of discrimination where they exist and to do something to redress historical discrimination” (S.J. Anaya, “On Justifying Special Ethnic Group Rights: Comments on Pogge” in I. Shapiro & W. Kymlicka (eds.), Ethnicity and Group Rights, Nomos 39, New York, New York University Press, 1997, 228). Section 236 (2), 1993 Constitution. See inter alia S. Ellmann, “The New South African Constitution and Ethnic Division,” Columbia Human Rights Law Review 1994, 27; X, “ANC Still Can’t Wrest Control of Apartheid’s Organs,” [www.mg.co.za/ mg/news/98oct1/7oc-anc.html].

Negotiations Leading up to the 1996 Constitution

135

85. X, Constitutional Talk Number 30 June–10 August 1995, [www.constitution.org.za/ talk9_95.html], 3. 86. X, Constitutional Talk Number 10–11 August 1995, [www.constitution.org.za/talk/ talk/10pg2-1.html], 1. 87. Ibid. 88. Ellmann, “The New South African Constitution and Ethnic Division,” 27. See also the process to develop and implement an affirmative action policy for the public service and inter alia the White Paper on Affirmative Action in the Public Service, Notice 564 of 1998, March 1998, [www.polity.org.za/govdocs/white_paper/affirmative.html], 33 p. 89. Ellmann, “The New South African Constitution and Ethnic Division,” 27. 90. Ibid. 91. Section 195 (1) (i), 1996 Constitution. 92. X, Constitutional Talk Number 12–8 September 1995, [www.constitution.org.za/ talk/12pg1-1.html], 1; X, Constitutional Talk Number 2–8 March 1996, [www.constitution.org.za/talk/2pg6-2.html], 1. 93. See also Sacks, “Multiculturalism, Constitutionalism and the South African Constitution,” 679. He underscores the connection between provincial autonomy and multiculturalism. 94. Klaaren, “Federalism,” 5.1. 95. H. Coveliers & M. Veys, “De Zuid-Afrikaanse Grondwet van 1996,” Tijdschrift voor Publiek Recht 1998, 238–239. 96. X, Constitutional Talk Number 10–11 August 1995, [www.constitution.org.za/talk/ 10pg8-1.html], 1–2. 97. See also section 100 of the 1996 Constitution on “National supervision of provincial administration.” 98. See inter alia X, Constitutional Talk Number 12–8 September 1995, [www.constitution.org.za/talk/13pg3-1.html], 1; X, Constitutional Talk Number 2–8 March 1996, [www.constitution.org.za/talk/2pg26-2.html], 1. 99. See inter alia J. Klaaren, “Federalism” in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, Kenwyn, Juta, loose-leaf, 5.5. 100. Personal observations when attending a multilateral on provincial competencies 30 April 1996. Constitutional Principle XIX: “The powers and functions at the national and provincial levels of government shall include exclusive and concurrent powers as well as the power to perform functions for other levels of government on an agency or delegation basis.” 101. Schedule 5, 1996 Constitution, “Functional Areas of Exclusive Provincial Legislative Competence,” Part A. 102. Schedule 4, 1996 Constitution, “Functional Areas of Concurrent National and Provincial Legislative Competence,” Part A. 103. Section 143 (1) and (2)(a), 1996 Constitution, which refers to the values set out in section 1. See also Coveliers & Veys, “De Zuid-Afrikaanse Grondwet van 1996,” 242. 104. Section 146, 1996 Constitution. For a discussion of the override clause, see Klaaren, “Federalism,” 5.12–5.16. 105. Section 44 (2) and 147 (2), 1996 Constitution. See also Coveliers & Veys, “De Zuid-Afrikaanse Grondwet van 1996,” 243. 106. Sections 40–41, 1996 Constitution. See also Klaaren, “Federalism,” 5.1–5.2.

136

Minority Protection in Post–Apartheid South Africa

107. The scope and focus of our work does not permit giving a detailed analysis of the relevant provisions, especially in view of the fact they are very extensive and often make use of concepts like “national security” and “essential national standards” and “loyal to the Republic” which need to be elaborated and clarified by subsequent jurisprudence. 108. Section 42 (4), 1996 Constitution: “The National Council of Provinces represents the provinces to ensure that provincial interests are taken into account in the national sphere of government. It does this mainly by participating in the national legislative process and by providing a national forum for public consideration of issues affecting the provinces.” In the interim Constitution the second chamber was called Senate (section 36, 1993 Constitution) and was also meant to represent the provinces at national level (see inter alia R.L. Watts, “Provincial Representation in the Senate” in B. De Villiers et al. (eds.), Birth of a Constitution, Kenwyn, Juta, 1994, 134). The new body, however, represents the provinces in a more direct way, and its legislative function is also more narrowly tailored to that representative function. 109. Section 60 (1), 1996 Constitution. 110. Section 61 (2) (a–b) and (4), 1996 Constitution. Section 60 (2), 1996 Constitution indicates a preference for the premier of the province to part of the delegation in the NCOP but the Premier is, according to section 128 (1), 1996 Constitution chosen from and by the provincial legislature. 111. Sections 75–76, 1996 Constitution. See also Coveliers & Veys, “De ZuidAfrikaanse Grondwet van 1996,” 241–242. 112. Section 74 (1), (2) and (3), 1996 Constitution. 113. Section 67, 1996 Constitution of South Africa. See also Coveliers & Veys, “De Zuid-Afrikaanse Grondwet van 1996,” 240. 114. Address by President Nelson Mandela to the National Council of Provinces, Cape Town, 7 August 1998. See also Watts, “Provincial Representation in the Senate,” 140. 115. See inter alia Coveliers & Veys, “De Zuid-Afrikaanse Grondwet van 1996,” 240. 116. Section 61 (3), 1996 Constitution. 117. X, Constitutional Talk Number 2–8 March 1996, [www.constitution.org.za/talk/ 2pg4-1.html], 1. 118. Speeches of Valli Moosa and Melanie Verwoerd of the ANC, CA, Second Reading, 6 May 1996; speech of a representative of the DP and Groenewald of the FF at the CA, 7 May 1996. For a critical evaluation of the constitutional provisions concerning local government see X. Philippe, “République D’Afrique du Sud: De La Constitution Intérimaire à La Constitution Définitive,” Revue Belge de Droit Comparé 1997, 53–54. 119. J. Klaaren, “Structures of Government in the 1996 South African Constitution: Putting Democracy Back into Human Rights,” South African Journal of Human Rights 1997, 12. 120. See also Coveliers & Veys, “De Zuid-Afrikaanse Grondwet van 1996,” 239 who underline that provincial autonomy is the uncertain factor about the actual degree of federalism that might develop in South Africa, due to the system of division of competencies, which also includes the override and intervention clauses. 121. It should be mentioned that although Constitutional Principle XXXIV is framed in general terms, it tends to be related to the wish of a certain group of white Afrikaners for a Volksstaat. 122. X, Constitutional Talk Number 3–10 February 1995, [www.constitution.org.za/talk/ 3pg7-1.htm], 1.

Negotiations Leading up to the 1996 Constitution

137

123. X, Constitutional Talk Number 1–13 February 1995, [www.constitution.org. za/talk1_95.html], 6–7; X, Constitutional Talk Number 8–29 June 1995, [www. constitution.org.za/talk8_95.html], 10. 124. Cf. Currie, “Minority Rights: Culture, Education and Language,” 35.33. 125. X, Constitutional Talk Number 13–26 January 1995, [www.constitution.org.za/ talk1_95.html], 6–7. 126. X, Constitutional Talk Number 8–29 June 1995, [www.constitution.org.za/ talk8_95.html], 9–10. Cf. Currie, “Minority Rights: Culture, Education and Language,” 35.34. 127. X, Constitutional Talk Number 3–22 April 1996, [www.constitution.org.za/talk/ 3pg3-1.html], 1. See also Currie, “Minority Rights: Culture, Education and Language,” 35.5; Strydom, “Minority Rights Issues in Post-Apartheid South Africa,” 900–901. 128. I was informed of this development by members of the Freedom Front. 129. The discussions clarified that these three agreements were designed to comply with Constitutional Principles XI, XII and XXXIV. 130. X, Constitutional Talk Number 3–22 April 1996, [www.constitution.org.za/talk/ 3pg3-1.html], 1. 131. Personal observations at the session of the Constitutional Sub-Committee 18–19 April 1996 to which the political parties reported the conclusion of the trilateral negotiations on these issues. 132. Currie, “Minority Rights: Culture, Education and Language,” 35.12. 133. Currie, “Minority Rights: Culture, Education and Language,” 35.16; Strydom, “Minority Rights Issues in Post-Apartheid South Africa,” 899–900. 134. Currie, “Minority Rights: Culture, Education and Language,” 35.12. 135. Section 185 (2), 1996 Constitution. Cf. Strydom, “Minority Rights Issues in PostApartheid South Africa,” 901. 136. Section 185 (4), 1996 Constitution. This statement is made on the basis of personal observation when attending the session of the Constitutional Sub-Committee where the political parties reported about their agreements. 137. See also G. Erasmus & J. De Waal, “Die Finale Grondwet: Legitimiteit en Ontstaan,” Stellenbosch Law Review 1997, 34, where it is argued that section 185 denotes an acceptance to accommodate a separate desire or sensitivity and that it can likely be seen as an indication of the way in which one should try to reach a constitutional democracy in South Africa. 138. Section 32 (1)(b), 1996 Constitution adds that these persons will not be denied the right “to form, join and maintain cultural, religious and linguistic associations and other organs of civil society.” Currie argues that this addition, compared to article 27 ICCPR, in effect does not make a difference in that it would be included by implication in the latter article: “the ability to associate with others for purposes of maintaining and developing culture is an essential component of a right to preserve the integrity of that culture” whereas article 27 enshrines according to him a right to cultural integrity (Currie, “Minority Rights: Culture, Education and Language,” 35.12–35.13). For some questions as to its implementation and limitations, see Strydom, “Minority Rights Issues in Post-Apartheid South Africa,” 900. 139. Currie, “Minority Rights: Culture, Education and Language,” 35.22. 140. Section 30, 1996 Constitution. 141. Cf. Currie, “Minority Rights: Culture, Education and Language,” 35.33–35.34.

138

Minority Protection in Post–Apartheid South Africa

142. Section 235, 1996 Constitution. 143. Currie, “Minority Rights: Culture, Education and Language,” 35.34. 144. Cf. N. Alexander, “Linguistic Communities of South Africa: Some Questions and Attempts at Answers,” presentation at IDASA Conference on the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities” (September 1996), unpublished manuscript on file with the author. 145. Strydom, “Minority Rights Issues in Post-Apartheid South Africa,” 907. 146. Schedule 6 of the 1996 Constitution, “Transitional Arrangements,” item 20(5). 147. See inter alia Sacks, “Multiculturalism, Constitutionalism and the South African Constitution,” 679. 148. X, Constitutional Talk Number 3–22 April 1996, [www.constitution.org.za/3pg31.html], 1. 149. In view of the nondominance requirement and the de facto status of English as lingua franca, it is clear that the linguistic group of English-speaking people do not qualify as “minority” in South Africa. 150. Currie, “Minority Rights: Culture, Education and Language,” 35.5. 151. Currie, “Minority Rights: Culture, Education and Language,” 35.5; Sacks, “Multiculturalism, Constitutionalism and the South African Constitution,” 679. 152. Then Minister of Constitutional Development, Valli Moosa, made the following statements at a Conference organized by IDASA in September 1996 on matters relating to the Commission: “[T]he constitutional principle which underlies the establishment of the Commission is to promote the objective of nation-building. . . . The establishment of the envisaged Commission must be guided by the following principles: The promotion of the rights of cultural, religious and linguistic communities; and the enhancement of peace, friendship, humanity, tolerance and national unity” (V. Moosa, “Legislation and the Anticipated Political Process,” unpublished manuscript but on file with the author, 3, 6). Cf. Y. Carrim (MP for the ANC), “Nation building and the Commission” in X (ed.), Proceedings of a Conference held in Pretoria (18–19 March 1997) on the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Minorities, Pretoria, Volksstaat Council, 1997, 93–100. 153. Sacks, “Multiculturalism, Constitutionalism and the South African Constitution,” 672. 154. According to Currie, section 31’s right to identity entails in the context of customary law that “[w]hile the Bill of Rights contains provisions supportive of group solidarity and continuity, such as s 31, it places them in the context of a list of rights aimed at guaranteeing individual freedom and equality. The constitutional protection of culture has therefore been phrased so as not to undermine the primacy of individual rights. The collective right to cultural integrity (identity) is qualified by the requirement that it may not “be exercised in a manner inconsistent with any provision of the Bill of Rights” (Currie, “Indigenous Law,” 36.26). 155. Currie, “Indigenous Law,” 36.24. 156. It was remarked at the Session of the Constitutional Subcommittee on 4 May 1996 that there was still no agreement on the education clause, whereas the so-called second reading of the Constitution Bill by the Constitutional Assembly was scheduled for 6 and 7 May 1996 while the vote on the adoption was to be on the 8th—personal observation and X, Constitutional Talk Number 3–22 April 1996, [www.constitution. org.za/talk/3pg2-3.html], 1.

Negotiations Leading up to the 1996 Constitution

139

157. For an overview of the position of the various parties present in the Constitutional Assembly, see X, Constitutional Talk 8–29 June 1995, [www.constitution.org.za/ talk8_95.html], 7–8. 158. Section 3 (1), 1993 Constitution. 159. See Announcing the Establishment of the Language Plan Task Group (LANGTAG), 12 December 1995, Media Statement by Dr. B.S. Ngubane, Minister of Arts, Culture, Science and Technology, Overview, Recommendations and Executive Summary from the Final Report of the Language Plan Task Group (LANGTAG), Pretoria, Department of Arts, Culture, Science and Technology, 8 August 1996, iii–v; X, Draft Report of the Language Plan Task Group (LANGTAG). Conference Discussion Document, Pretoria, Department of Arts, Culture, Science and Technology, June 1996, 4. Cf. Currie, “Official Languages,” 37.14–37.15. 160. The draft reports of the various subcommittees of LANGTAG were presented at a conference in June 1996 entitled “A Language Plan for South Africa” and the Final Report was presented to the Minister of Arts, Culture, Science and Technology, 8 August 1996. 161. LANGTAG, Draft Report of the Language Plan Task Group (LANGTAG), Conference Discussion Document, Pretoria, DACST, June 1996, 13, 17, 22, 26, 34, 37; X, Overview, Recommendations and Executive Summary from the Final Report of LANGTAG, 9. 162. Interview with a senior negotiator of the ANC who had been working on the language issue from the beginning, Baleka Kogtsisile, Cape Town, 15 April 1996; Interview with Willie Hofmeyer, another senior ANC negotiator, Cape Town, 8 March 1996. 163. Section 6 (3)(a), 1996 Constitution: “The national government and provincial governments may use any particular official languages for the purposes of government, . . . but the national government and each provincial government must use at least two official languages.” 164. Currie, “Official Languages,” 37.7. 165. Section 6 (1), 1996 Constitution. 166. D. Young, “The Role and the Status of the First Language in Education in a Multilingual Country” in K. Heugh et al. (eds.), Multilingual Education for South Africa, Johannesburg, Heinemann, 1995, 65. 167. Cf. Currie, “Official Languages,” 37.2. 168. See also Currie, “Official Languages,” 37.5. 169. Section 6 (4), 1996 Constitution. Cf. Strydom, “Minority Rights Issues in PostApartheid South Africa,” 898–899. 170. Currie, “Official Languages,” 37.5. See also LANGTAG, Overview, Recommendations and Executive Summary from the Final Report of LANGTAG, 9. 171. See inter alia X, “Symbols for a new South Africa,” Constitutional Talk Number 8–29 June 1995, [www.constitution.org.za/talk8-95.html], 7. The Final LANGTAG Report also expresses a favorable attitude to functional multi-lingualism and it underscores that “[t]he general orientation of the Subcommittees—even if not always made explicit—is one of functional multi-lingualism, but not in the sense of a diglossic situation where the languages are forever doomed to be used in certain domains only. It is an open-ended functional approach such that as languages become usable in any domain their users will be constitutionally (and in practice)

140

172. 173. 174. 175. 176. 177. 178. 179. 180. 181.

182.

183. 184.

185. 186.

187.

188. 189. 190. 191. 192. 193. 194. 195. 196.

Minority Protection in Post–Apartheid South Africa

entitled to require that they be so used” (LANGTAG, Overview, Recommendations and Executive Summary. Part I of the Final LANGTAG Report: Towards a National Language Plan for South Africa, Pretoria, 8 August 1996, 10). Currie, “Official Languages,” 37.6. Long title of Pan South African Language Board Act, No 59 of 1995. Pan South African Language Board Act, section 3 (a)(i). Pan South African Language Board Act, section 3(b). Pan South African Language Board Act, section 3 (c). Section 6 (5) (a)(ii), 1996 Constitution. Section 6 (5) (a)(ii), 1996 Constitution. Section 3 (5), 1996 Constitution. Interview with senior ANC negotiator Baleka Kogtsisile, Cape Town, 15 April 1996. Veena Lutchman, president of the Institute of Indian Languages of South Africa, expressed great concern about this change, and she underlined that the Indian languages are spoken by significant groups of the South African population and that consequently these languages deserved some public support and attention materially as well as in policy choices regarding the use of language in the public sphere (interview in Durban, June 12, 1996). Currie, “Minority Rights: Culture, Education and Language,” 35.7; Kriel, “Education,” 38.15; Lobban, “Un Accord Négocié: Le Processus Constitutionnel en Afrique du Sud depuis 1991,” 107. Working draft Constitution, 19 October 1995. Currie, “Minority Rights: Culture, Education and Language,” 35.6–35.7; Interview with Willie Hofmeyer. senior negotiator ANC, Cape Town, 8 March 1996; Interview with Roelf Meyer, senior negotiator for the NP, Cape Town, 25 April 1996. Section 32 (c), of the 1993 Constitution. For a critical evaluation of this holding of the Constitutional Court, see inter alia R. Malherbe, “The Education Clause in the South African Bill of Rights: Background and Contents” in J. De Groof & E.F.J. Malherbe (eds.), Human Rights in South African Education: From the Constitutional Drawing Board to the Chalkboard, Leuven, Acco, 1997, 58–59. The Gauteng Provincial Legislature In Re: Dispute Concerning the Constitutionality of Certain Provisions of the School Education Bill of 1995, Constitutional Court of South Africa, CCT 39/95, 4 April 1996, 1996 (3) SA 165 (CC), 1966 (4) BCLR 537 (CC), § 7 (hereinafter: Gauteng Education case, CC, § . . .). For a discussion of this case, see inter alia Henrard, “Het Grondwettelijk Hof van Zuid-Afrika: Samenstelling, Procedure en Belangrijke Ontwikkelingen in de Jurisprudentie,” 858–859. Sections 32 (a) and (b) of the 1993 Constitution. Kriel, “Education,” 38.18. Gauteng Education case, CC, § 8. Section 29 (3) of the 1996 Constitution. Gauteng Education case, CC, §§ 10–11. Cf. Malherbe, “The Education Clause in the South African Bill of Rights: Background and Contents,” 63. Currie, “Minority Rights: Culture, Education and Language,” 35.6–35.7. Section 29 (2) of the 1996 Constitution. It should be remarked, however, that the NP stated at the relevant session of the Constitutional Sub-Committee that single-medium institutions were catered for

Negotiations Leading up to the 1996 Constitution

197.

198. 199. 200. 201.

202. 203.

204. 205. 206.

207. 208. 209. 210.

211.

212.

141

sufficiently in this way (personal observations at the session of the Constitutional Sub-Committee of 7 May 1996). Kriel, “Education,” 38.15. He furthermore points out that the 1996 Constitution expands the field of choice under the 1993 Constitution: “[T]he right to choose one’s language of instruction did not extend to the educational milieu itself. One could not choose to be educated in a particular language in a single medium school” (ibid., 38.14–38.15). Cf. Malherbe, “Reflections on the Background and Contents of the Education Clause in the South African Bill of Rights,” 97. Section 29 (4) of the 1996 Constitution. Personal observations when attending the meeting of the Constitutional SubCommittee, 7 May 1996. Cf. D. Brown, “Current Developments in Language Policy,” Education Monitor April 1997, 3. Section 73 (2), 1993 Constitution. As the Constitutional Court pointed out in its first certification judgement, the CA adopted the 1996 Constitution by a majority of some 86 percent of its members (Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution, 1996, CCT 23/96, 6 September 1996, 1996 (4) SA 744 (CC), 1996 (10) BCLR 1253 (CC)—hereinafter First Certification Judgement of the National Constitution, CC, § . . .). X, Constitutional Talk Number 5–17 October 1996, [www.constitution.org.za/ talk5_96.html], 2. For a conclusion in terms of the interim Constitution that seems equally applicable to the 1996 Constitution, see also Manby, “South Africa: Minority Conflict and the Legacy of Minority Rule,” 52. 8 May 1996, Cape Town. Section 71, 1993 Constitution. Constitutional Court of South Africa, First Certification Judgement of National Constitution, §§ 12–13. Cf. A.J.H. Henderson, “Cry the Beloved Constitution? Constitutional Amendment, the Vanished Imperative of the Constitutional Principles and the Controlling values of Section 1,” South African Law Journal 1997, 543; R. Simenon, “Considerations on the Design of Federations: The South African Constitution in Comparative Context,” SA Public Law 1998, 43. Constitutional Principle XIV furthermore requires that participation of minority political parties is ensured in the legislative process. First Certification Judgement of the National Constitution, § 27. In view of the broad approach adopted regarding measures that are related to minority protection, I do not claim to be exhaustive in this regard either. Henderson, “Cry the Beloved Constitution? Constitutional Amendment, the Vanished Imperative of the Constitutional Principles and the Controlling Values of Section 1,” 547. Cf. A.S. Butler, The 1996 Constitution Bill, Its Amending Powers and the Constitutional Principles, Occasional Papers, Johannesburg, KAS, July 1996, 1. Henderson, “Cry the Beloved Constitution? Constitutional Amendment, the Vanished Imperative of the Constitutional Principles and the Controlling Values of Section 1,” 547. Section 74 (1), 1996 Constitution: “Section 1 and this subsection may be amended by a Bill passed by (a) the National Assembly, with a supporting vote of at least 75 per cent of its members; and (b) the National Council of Provinces, with a supporting vote of at least six provinces.”

142

Minority Protection in Post–Apartheid South Africa

213. Section 1, 1996 Constitution: “The Republic of South Africa is one, sovereign, democratic state founded on the following values: (a) Human Dignity, the achievement of equality and the advancement of human rights and freedoms, (b) Non-racialism and non-sexism, (c) Supremacy of the Constitution and the rule of law, (d) Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.” 214. See also Butler, “The 1996 Constitution Bill, Its Amending Powers and the Constitutional Principles,” 12. 215. Henderson, “Cry the Beloved Constitution? Constitutional Amendment, the Vanished Imperative of the Constitutional Principles and the Controlling Values of Section 1,” 551–552. 216. Strydom, “Minority Rights Issues in Post-Apartheid South Africa,” 881. 217. Section 167 (3)(a), 1996 Constitution. 218. First Certification Judgement of the National Constitution, § 31. See also ibid., § 46 where the Constitutional Court underscores that the Constitution “satisfies the basic structures and premises of the new constitution contemplated by the applicable CPs.” 219. First Certification Judgement of the National Constitution, CC, § 483. 220. First Certification Judgement of the National Constitution, CC, §§ 482–483. 221. In contravention of Constitutional Principles II and XV. 222. In contravention of Constitutional Principles X, XXIV, and XV. 223. In contravention of Constitutional Principle XVIII.2. 224. See also First Certification Judgement of the National Constitution, CC, § 306. 225. First Certification Judgement of the National Constitution, §§ 300–302. 226. Cf. First Certification Judgement of the National Constitution, CC, §§ 308–317. The Court has given an extensive analysis of the respective powers and functions of the provinces, including the role of the second chamber of parliament (and its composition) in §§ 318–333; the legislative powers in §§ 334–341; the constitution-making powers in §§ 342–353, powers with respect to local government in §§ 354–380, powers with regard to traditional leadership in §§ 402–409, which lead to the conclusion in § 481 that “[i]f the curtailment of powers and the override provisions referred to in the preceding two paragraphs are taken together, their combined weight in the context of the NT as a whole is sufficient to be considered substantial. It therefore follows that the NT does not satisfy CP XVIII.2.” 227. First Certification Judgement of the National Constitution, CC, § 211. 228. First Certification Judgement of the National Constitution, CC, § 210. 229. Section 6 (5)(b), 1996 Constitution. 230. See also Currie, “Official Languages,” 37.3. 231. First Certification Judgement of the National Constitution, CC, § 212. 232. Currie, “Official Languages,” 37.7. 233. First Certification Judgement of the National Constitution, CC, § 81. Cf. Strydom, “Minority Rights Issues in Post-apartheid South Africa,” 904–905. 234. Cf. Currie, “Indigenous Law,” 36.4. 235. First Certification Judgement of the National Constitution, CC, § 189. 236. First Certification Judgement of the National Constitution, CC, § 190. Cf. Currie, “Indigenous Law,” 36.4. 237. First Certification Judgement of the National Constitution, CC, § 197.

Negotiations Leading up to the 1996 Constitution

143

238. Cf. Currie, “Indigenous Law,” 36.5 and 37.16–37.17. The Court also makes the following interesting statement on Constitutional Principle XIII and its relation to customary law as well as the institution of traditional leadership: “CP XIII acknowledges the existence, as part of the South African community, of three elements of traditional African society with noteworthy and continuing cultural relevance. These are institutions of traditional leadership, customary law and, at the provincial level, traditional monarchy. In a purely republican democracy, in which no differentiation of status on grounds of birth is recognized, no constitutional space exists for the official recognition of any traditional leaders, let alone a monarch. Similarly, absent an express authorization for the recognition of indigenous law, the principle of equality before the law in CP VI could be read as presupposing a single and undifferentiated legal regime for all South Africans, with no scope for the application of customary law—hence, the need for expressly articulated CPs recognizing a degree of cultural pluralism with legal and cultural, but not necessarily governmental consequences” (First Certification Judgement of the National Constitution, CC, § 195). 239. First Certification Judgement of the National Constitution, CC, § 215. 240. First Certification Judgement of the National Constitution, CC, § 218. 241. First Certification Judgement of the National Constitution, CC, § 218. 242. First Certification Judgement of the National Constitution, CC, § 219. 243. First Certification Judgement of the National Constitution, CC, § 220. 244. X, Constitutional Talk Number 4–7 September 1996, [www.constitution.org.za/ talk5_96.html], 4. 245. X, Constitutional Talk Number 4–7 September 1996, [www.constitution.org.za/ talk4_96.html], 1. 246. Section 73A, 1993 Constitution requires the amended text to be adopted within a period of two months after the CC has sent the text back to the CA. 247. X, Constitutional Talk Number 4–7 September 1996, 4–5. See also Constitution of the Republic of South Africa Third Amendment Act, Act no 26 of 1996, adding section 73A to the 1993 Constitution, which states in subsection 2 that the amended text of the final Constitution should take into account the reasons of the Constitutional Court for non-certification. 248. X, Constitutional Talk Number 5–17 October 1998, [www.constitution.org.za/ talk5_96.html], 2. 249. For an enumeration of the amendments to the 1996 Constitution eventually agreed to by the CA; see X, Constitutional Talk Number 5–17 October 1996, 2–6. 250. Chairperson of the Constitutional Assembly: Ex Parte in Re Certification of the Amended Text of the Constitution of the Republic of South Africa 1996, Constitutional Court of South Africa, CCT 37/95, 4 December 1996, 1997 (2) SA 97 (CC), 1997 BCLR 1 (CC), § 205 (hereinafter: Second Certification Judgement of the National Constitution, CC, § . . . ). 251. Gloppen, South Africa: The Battle over the Constitution, 223. 252. Second Certification Judgement of the National Constitution, CC, §§ 203–204. 253. Second Certification Judgement of the National Constitution, CC, § 99. 254. Second Certification Judgement of the National Constitution, CC, § 100. Cf. Currie, “Indigenous Law,” 36.5. 255. Cf. Currie, “Minority Rights: Culture, Education and Language,” 35.23. 256. Second Certification Judgement of the National Constitution, CC, § 24.

144

Minority Protection in Post–Apartheid South Africa

257. 258. 259. 260. 261. 262.

Second Certification Judgement of the National Constitution, CC, § 24. Second Certification Judgement of the National Constitution, CC, § 26. Second Certification Judgement of the National Constitution, CC, § 27. Second Certification Judgement of the National Constitution, CC, § 24. Second Certification Judgement of the National Constitution, CC, § 24. Cf. speech of Minister Kader Asmal in the Constitutional Subcommittee (ANC) on the night of 18–19 April 1996 when the three-dimensional agreement on minority protection was reached; personal attendance and observations.

5

The Constitutional Building Blocks for Post-Apartheid South Africa’s Approach to Minority Protection/Accommodation of Population Diversity

ADDITIONAL FEATURES OF THE 1996 CONSTITUTION OF RELEVANCE FOR THE EVALUATION: STRONG INSTITUTIONAL BACKUP AND THE IMPACT OF INTERNATIONAL LAW Before presenting some general evaluations of the 1996 Constitution’s contribution to minority protection and the accommodation of South Africa’s population diversity, certain features of that Constitution should be highlighted. Although the implementation of the 1996 Constitution, which came into effect 4 February 1997,1 will be analyzed later, some indications are already given at this point as they seem appropriate and even required for an accurate evaluation. First of all, several “State Institutions Supporting Constitutional Democracy”2 are provided for in the Constitution, which are meant to improve the effectiveness and realization of the fundamental rights and freedoms enshrined in the Bill of Rights, some of which can be considered minority rights. This is important in that methods and mechanisms to enhance the protection of rights tend to contribute to minority protection in view of the in se vulnerable and not politically powerful position of minorities. Institutions like the public protector, with a mandate to investigate and address practices of maladministration,3 and

146

Minority Protection in Post–Apartheid South Africa

especially the Human Rights Commission and its task to promote the protection and attainment of human rights, inter alia by taking steps “to secure appropriate redress where human rights have been violated,”4 are relevant in this respect. The actual impact of these institutions on an emergence of a culture of human rights and its contribution to minority protection will only be visible over time through their functioning.5 Nevertheless, the fact that so much attention has been given to the creation of the necessary institutional backup to further the realization of the constitutional rights6 sends an important symbolic message to the public at large. Even more directly relevant to the accommodation of population diversity/ minority protection are the Pan South African Language Board (PANSALB)7 and the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities.8 The symbolic importance of their explicit recognition and especially their location in the Constitution can not be overemphasized as it arguably reveals a favorable attitude towards the country’s population diversity. The Pan South African Language Board is mentioned in the first chapter with “Founding Provisions,”9 whereas the “Communities Commission” is mentioned in the chapter on “State Institutions Supporting Constitutional Democracy.” The importance of language for the identity of people in general and the high sensitivity of the status of languages in South Africa has already been mentioned and analyzed several times and was very obvious during the constitutional negotiations. This sensitivity of and importance attached to linguistic matters has from the start been recognized by the drafters of the constitution in their according the provision on languages the status of “founding provision.” The need to accommodate the country’s linguistic diversity was further acknowledged by providing for the establishment of the Pan South African Language Board already in the interim Constitution, with a mandate that is clearly geared towards protecting and promoting multi-lingualism.10 The agreement in respect to the “Communities Commission” and its importance for minority protection purposes has already been discussed. The location of the provisions on the Commission dealing with minority concerns in the chapter on “State Institutions Supporting Constitutional Democracy” arguably reveals a vision of democracy that implies features of minority protection.11 However, the implementing legislation for the “Communities Commission” only properly started 4 August 1998 with the simultaneous debates in the National Assembly and all nine provincial legislatures.12 This, incidentally, shows that the ANC has taken a long time, since the adoption and coming into force of the 1996 Constitution, to determine its position in this regard.13 Furthermore, by March 2001 the final version of the bill had not yet come before Parliament, which further demonstrates the high sensitivity of the topic. Eventually, the actual impact and contribution to minority protection of the “Communities Commission” (when established) and of the Pan South African Language Board will only be apparent over time. It should be mentioned at this

The Constitutional Building Blocks

147

point that several members of PANSALB feel that the government and the administration hardly ask their opinion about the intended linguistic policy, let alone take their comments properly into account.14 Neville Alexander, the deputy chairman of PANSALB, resigned 25 March 1998, explaining his resignation as the result of two years of administrative and bureaucratic obstruction and his conviction that neither the government nor the majority of departments take multi-lingualism seriously.15 This rather bleak picture of the actual implementation of the constitutional provisions on the status of languages and linguistic diversity indicates the low degree of effective accommodation of population diversity in South Africa. Although concerns of minority protection should not get unlimited recognition and should be balanced with other legitimate concerns, this discrepancy demonstrates that the road to official multi-lingualism and multiculturalism is not without hurdles. The above rather critical assessment should be seen as a first indication of the discrepancies between theory/constitutional provisions and forecasts versus the actual practice. Another related feature that should be highlighted is that since the coming into force of the interim Constitution, South Africa’s judicial system is blessed with a Constitutional Court, which is the highest court for all constitutional matters.16 This Court will consequently exert an important influence regarding issues of interpretation, protection, and enforcement of the constitutional provisions, including the Bill of Rights with its numerous provisions of relevance for minority protection.17 Considering the often vague and general wording of the constitutional provisions, it is obvious that the Constitutional Court will give further shape to the exact content of many of the rights enshrined in the Bill of Rights and also to other provisions related to the accommodation of South Africa’s population diversity.18 Consequently, the following chapter, dealing with the main lines of implementation of the relevant features of the 1996 Constitution, will refer to and briefly discuss several judgements of the Constitutional Court. It is also appropriate to mention at this point that the “standing” provision in the Bill of Rights is rather generous in that it allows “anyone acting as a member of, or in the interest of, a group or class of persons” or “an association acting in the interests of its members” to approach a competent court for a claim dealing with Bill of Rights issues.19 This provision tends to facilitate an enhanced protection of the group dimension, inherent to the minority phenomenon, while not turning the relevant provisions of the Bill of Rights into real group rights. Group rights and rights presupposing the membership of a certain population group20 are still highly sensitive in view of apartheid’s abusive strategies. Finally, the degree to which international law can and effectively will influence the jurisprudence of the courts and especially the Constitutional Court is relevant for the degree of effective minority protection. The South African Constitution requires that “[w]hen interpreting the Bill of Rights, a court, a tribunal or forum . . . (b) must consider international law and (c) may consider foreign law.”21 There is thus a constitutional obligation to consider international law

148

Minority Protection in Post–Apartheid South Africa

but only a constitutional possibility to make use of comparative international law. It is important to mention that the 1996 Constitution contains stronger wording than the 1993 Constitution in this regard in that the qualification “where applicable” is no longer part of the relevant section of the former Constitution. It has been argued that the Court will therefore no longer be able to “downplay” the constitutional injunction to consider international law as it did in the Azanlan Peoples Organization (AZAPO) case in terms of section 35 of the 1993 Constitution.22 Although the exact scope of “consider” is not at first sight obvious, the Constitutional Court has regularly referred to the jurisprudence of the European Convention on Human Rights23 and also to legislation and jurisprudence of certain states.24 Nevertheless, the judgements of the Constitutional Court reveal that although international law is being considered, the Court does take its own unique stance regarding the issues concerned.25 It can be argued that for cases involving issues of minority protection and accommodation of population diversity, a serious commitment to have regard to international law and the relevant conventions might be helpful.26 The international law standards, however, cannot be conclusive because of their vague nature and the distinctions between international minority rights structures and those contained in the 1996 Constitution,27 which are related to the historical and political features specific to South Africa.28 The possible influence of international law on the interpretation of the relevant provisions in the South African Constitution will thus probably be a matter of degree rather than of a conclusive result. By emphasizing the specificity of the South African situation and the way in which this should influence constitutional interpretation, the Constitutional Court also acknowledges, albeit implicitly, that it is vital (and typical) for a system of minority protection to be tailored to the specific circumstances of the situation concerned.

OVERALL EVALUATION OF SOUTH AFRICA’S 1996 CONSTITUTION REGARDING ITS CONTRIBUTION TO MINORITY PROTECTION Several (clusters of) provisions of the 1996 Constitution indicate that the constitution “is a valiant and progressive attempt to indicate inclusiveness for different traditions and viewpoints—a sine qua non for democracy”29—and that it can be seen as providing for minority protection in a number of ways.30 The Constitution promotes the right to identity of minorities in (at least) four sections of the Bill of Rights: in the sections on the medium of instruction, in the possible legislative recognition of marriages and systems of personal or family law according to a certain religion,31 and, finally, in sections 30 (rights to language and culture) and 31 (rights of cultural, religious and linguistic communities).32 It also provides for eleven official languages while additionally requiring the promotion

The Constitutional Building Blocks

149

of several other languages spoken in South Africa and recognizes, to a certain extent, the institution of traditional leadership and customary law. Finally, the Constitution guarantees a degree of provincial autonomy in certain identityrelated matters and even refers to the right to self-determination for a community sharing a common cultural and language heritage.33 A more in-depth analysis of the relevant Constitutional provisions has, nevertheless, revealed that there are always restrictions to these recognitions and accommodations of South Africa’s population diversity, both at the level of principle and in practice.34 Regarding linguistic pluralism, the tensions between the constitutional ideal and its actual implementation were already mentioned, in that a lack of commitment to multi-lingualism can be inferred from the actual practice.35 The tentative recognition of traditional leaders and of customary law was also pointed out and explained by the high importance attached to values like democracy and equality.36 The weak formulation of section 235’s reference to self-determination leads several commentators to underscore that the 1996 Constitution largely deals with and provides for self-determination in internal, mainly non-territorial ways.37 The degree to which provincial autonomy might contribute to the accommodation of the population diversity at the provincial level will also depend on the way the relation between national and provincial powers will develop38 and on the way in which the population groups at provincial level will interact and mobilize politically. Finally, the “minority rights” provisions in the Bill of Rights are not absolute and the Constitution allows not only for limitations on the basis of the general limitation clause but also on the basis of specific limitations. The latter type of limitations in sections 15 (3), 30, and 31 are the consistency clauses, which require inter alia consistency with the equality provision. Such a requirement tends to be in line with the stance in international law that minority rights should not amount to privileges but should be circumscribed by the principle of substantive equality. This distinction between minority rights and privilege is both sensitive and relevant in South Africa in view of the fact that at the moment the most vocal minority group is a section of the white Afrikaner population. The general limitations provision also has a role to play regarding the rights enshrined in sections 30 and 31. One of the conditions for a legitimate limitation, that it be “reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom,”39 can be interpreted to mean that the objective behind such limitations should be “designed to reinforce the values of the new constitutional dispensation.”40 Considering the importance attached (in the South African Constitution) to the goal of national unity and the “tainted record of the discourse of minority rights in South Africa,” “[m]easures aimed at repairing the divisions of the past and promoting a common South African identity may appear eminently justifiable even where they trespass on minority autonomy.”41 It can, however, be argued that even taking into account the specific situation of post-apartheid South Africa, it would be unacceptable to restrict minority rights completely in the name of national unity as this would be “to discount the value

150

Minority Protection in Post–Apartheid South Africa

of those protections for the project of an open and democratic society based on human dignity, equality and freedom.”42 The overall picture that emerges from the above analysis is that although several provisions of the 1996 Constitution amount to a certain degree of minority protection by recognizing and accommodating the country’s extensive population diversity, the document contains at the same time clauses that allow for potentially far-reaching limitations. These limitations are in theory completely justified and appropriate as they have the potential to bring the entire constitutional project closer to and within the boundaries of the principle of substantive equality, while allowing for the values of democracy and national unity/nation building to be pursued in a way that takes the specific South African circumstances fully into account. However, these legitimate limitations should not go so far as to completely empty the minority protection provisions of their content. To be sure, this would go counter to the kind of society (and the unity in diversity) envisaged by the Constitution. It cannot be emphasized enough that only the actual implementation and application of the relevant constitutional provisions will reveal the effective degree of minority protection achieved in post-apartheid South Africa. The eventual mechanisms and combination of techniques chosen will and should be determined by the specific South African situation, its history, and the recent societal developments (including demographics and politics). It will be important for South Africa to make good use of its current trial and error period and to find the appropriate balance between unity and diversity. Strydom correctly underlines that the: constitutional recognition of unity in diversity offers the best practical solution for this intermediate phase in the country’s political and constitutional development. . . . Equally important, however, will be the realisation and further development of the constitutional principles through state policy and practice which, if wrongly conceived and applied, can seriously undermine trust in the existing scheme of constitutional protection.43

The actual practice and implementation will determine the feeling of inclusiveness, of being part of the wider comity of the various population groups, which is so essential to avoid the disaffection that moves towards separatism and possibly even secession.44 In this respect, the implementation of affirmative action has already proved divisive and contentious and has contributed to a feeling of marginalization, not only on the part of the Afrikaner community, but also of the Colored and Indian population groups.45 South Africa is, indeed, faced by an immense challenge because of its high degree of population diversity, the legacy of apartheid, its consequent need to be addressed, and, finally, the severe resource constraints (adding practical limitations). The eventual success of the project of building a nation, which is inclusive of all population groups and their concerns, thus appears to be a long-term objective. Nevertheless, the Constitution undeniably offers the necessary foundation to construct, over time, a society reflecting that ideal.46

The Constitutional Building Blocks

151

EVALUATION OF SOUTH AFRICA’S 1996 CONSTITUTION IN TERMS OF THE INTERRELATION BETWEEN INDIVIDUAL HUMAN RIGHTS, MINORITY RIGHTS, AND THE RIGHT TO SELF-DETERMINATION FOR AN ADEQUATE MINORITY PROTECTION On the basis of the Constitution as it stands, it can be argued that the 1996 Constitution of South Africa, in its effort to achieve “unity in diversity,” makes use of the three categories of rights—individual human rights, minority rights, and the right to self-determination. In this way, the South African approach and experience seems to confirm the interrelation between these three categories of rights for the elaboration of an “adequate” system of minority protection. It is clear that the exact combination, and the way in which the distinctive approaches to minority protection are constructed, are determined by South Africa’s specific circumstances, including the apartheid history and the concomitant political sensitivity towards discourses of minority rights and self-determination.47 However, the further implementing measures and their actual application will be vital for a genuine successful accommodation of South Africa’s population diversity. The implementation phase will be discussed and evaluated later, but it is appropriate to indicate at this point that there are several deficiencies that might very well lead to a situation of de facto denial of the interrelation between these three categories of rights. It is important to be aware at all times of a striking characteristic of South Africa: it is a state in full transformation. Whereas the provisions that can be seen to be specifically aimed at minority protection (including the ones on traditional leaders and customary law) are, to a greater or lesser extent, already analyzed, the relevant human rights provisions should still be briefly discussed. In addition, the several ways in which the right to self-determination in its internal dimension is “guaranteed” in the South African Constitution should be further developed. The first right to discuss as a human right of relevance to minority protection purposes is the right to equality (in its several dimensions), which nicely ties in with the fundamental importance of the equality principle in the South African Constitution.48 It was already mentioned that the South African Constitution “embraces a substantive conception of equality.”49 It not only prohibits (direct as well as indirect) discrimination, and thus enshrines the first pillar of any full-blown system of minority protection, it also specifically provides for the constitutional possibility to take affirmative action measures. Such measures are recognized to be consistent with the equality principle.50 Whereas the need to redress the imbalances created by apartheid’s racial discrimination by positive and constructive measures is widely recognized as a matter of principle,51 its actual implementation is very contentious, not only among the White population group, but also among the Colored and the Indian population groups. Consequently and in order to further the principle of substantive equality, it can be argued that some alteration to the effective implementation of

152

Minority Protection in Post–Apartheid South Africa

the affirmative action rules should be made so as to (more appropriately) include the two above mentioned population groups, without depriving Afrikaners completely of any (job) prospect. Matters that are also related to the need to provide enough/extra protection for the members of nondominant and vulnerable groups to ensure the effectiveness of the rights granted pertain to the kind of limitations that are accepted52 and the extent to which derogation of these rights is accepted in times of emergency. Although the 1996 Constitution does not explicitly impose different levels of scrutiny, the fact that the “nature of the right” is the first relevant factor enumerated to determine whether a limitation is justifiable arguably implies that “[i]f the right infringed is deemed crucial to our constitutional project, it will tighten several, if not all limitation inquiries that follow.”53 This implicit hierarchy has obvious implications regarding possible tensions between the equality principle and the right to (cultural) identity. It should suffice to add at this point that the wording of the 1996 Constitution, including the several factors explicitly enumerated as being relevant, reveal that the limitation exercise under section 36 is quite similar to the one envisaged in the European Convention on Human Rights and other international human rights documents.54 The proclamation of a state of emergency and the ensuing possibility to derogate from certain fundamental rights and freedoms is also carefully circumscribed in a rather detailed and lengthy clause.55 This degree of detail can be related to the specific history of South Africa and the abuse of state of emergencies by the apartheid regime. As the Constitutional Court confirmed in its first Certification Judgement of the National Constitution, this provision is in line with the corresponding international human rights norms.56 A set of human rights provisions in the Bill of Rights of special importance for (members of) minorities are those recognizing a collective dimension, like socalled associational individual rights, or “rights which cannot be fully or properly exercised by individuals otherwise than in association with others of like disposition.”57 It concerns the freedom of assembly,58 freedom of association,59 and the right to form and participate in the activities of political parties.60 It is also relevant to point once more to the possibility for collective enforcement guaranteed by section 38, 1996 Constitution as this obviously strengthens the above mentioned collective dimension.61 The importance for minority protection purposes of the freedom of assembly, in combination with the right to participate in activities of political parties, has been underscored in the following way: [F]reedom of assembly is an important political tool for those who feel that their demands are not being given serious attention by the state. In large part, assembly is used by discrete minorities or so-called “out-groups,” which find it difficult to organize and present their concerns within the confines of representative politics. For them, the freedom to assemble makes democracy visible and legitimate, in addition to countering feelings of helplessness and isolation. One of the primary consequences of minorities’ subjective experiences of empowerment is that majority rule is stabilized; by allowing minorities to

The Constitutional Building Blocks

153

influence the majority’s decisions, the state’s general exercise of power becomes more legitimate.62

Although freedom of association has in several respects potential for furthering the protection and promotion of the separate identity of the population groups that consider it important,63 the horizontal applicability of the equality principle also impacts on the relation between the freedom of association and minority protection. Associations that would promote and embody discriminatory practices on the grounds of race, ethnicity, culture, language, or religion will probably be precluded in this way. However, the Constitution’s commitment to affirmative action and (thus) substantive equality would seem to support, in principle, associations that aim to empower historically disadvantaged groups. Woolman makes the following interesting remarks on “empowering associations”: These associations may need to have discriminatory membership policies and internal procedures if they are to be able to police their resources and be in a position to achieve their constitutionally protected objective. When faced with such an association the state may be hard pressed to show that it has an interest in regulating the membership policies and internal affairs of such an association on racial . . . equality grounds. After all, it is the constitutionally protected goal of realizing real racial . . . equality through affirmative action which justifies the exclusion in the first place. However, to pass constitutional muster the association should at least have to demonstrate two things. First, it should have to show that its membership is historically disadvantaged and continues to be disadvantaged. Secondly, it should have to show that the exclusive membership policy promotes the goal of substantive equality.64

There is, as yet, no relevant case law to bring more clarity on the effective interpretation and application of the principles set out here, which is necessary for a complete assessment of the contributions of these human rights to the accommodation of South Africa’s population diversity. The right to privacy, as enshrined in the 1996 Constitution,65 is very broad, and since privacy has been said to be closely related to the concept of identity,66 the effective scope of the protection of the right to privacy is relevant for minority protection. The Constitutional Court did underline the importance of the right to privacy in its case law67 but recognized at the same time that certain societal interests could legitimately influence people’s lives, the extent of which would depend on the nature of the specific privacy right at issue,68 or as Ackermann J argues in Bernstein v Berster: The truism that no right is to be considered absolute implies that from the outset of interpretation each right is always already limited by every other right accruing to another citizen. In the context of privacy this would mean that it is only the inner sanctum of a person, such as his/her family life, sexual preference and home environment, which is shielded from erosion by conflicting rights of the community. This implies that community rights and the rights of fellow members place a corresponding obligation on a citizen,

154

Minority Protection in Post–Apartheid South Africa

thereby shaping the abstract notion of individualism towards identifying a concrete member of civil society. Privacy is acknowledged in the truly personal realm, but as a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks accordingly.69

In view of the relevance of religious affiliation for purposes of (minority) identity, it is important that the South African Bill of Rights enshrines the freedom of religion, belief, and opinion.70 Whereas the subsection dealing with the possible recognition of religiously inspired marriages and systems of personal and family law belongs rather to the category of provisions that qualify as minority rights, the other subsections are more appropriately addressed at this point. It was already remarked that section 15 (2) reveals that no strict separation between church and state is envisaged in the South African Bill of Rights.71 The Constitutional Court has made interesting statements in Lawrence v The State and Another72 on the content and implications of the freedom of religion and more specifically on the appropriate approach of the state towards the manifold religions present in South Africa. It should be pointed out though that no majority opinion can be distinguished73 and that the judgement reveals differences of opinion amongst the judges as to the required degree of “distance” between the state and the respective religions.74 In response to the challenge that because “closed days” for grocers to sell alcoholic beverages are exclusively determined by Christianity, this determination would amount to a violation of the freedom of religion; different tests are formulated for state activity that would amount to an unjustifiable endorsement of a particular religion (and thus a violation of section 15). Chaskalson P, as well as three other concurring judges, is of the opinion that “there may be circumstances in which the endorsement of a religion by the state would contravene the freedom of religion. This would be the case where the endorsement has the effect of coercing persons to observe the practices of a particular religion, or placing constraints on them in relation to the observance of their own religion.”75 O’Regan J, with whom two other judges concur, adds another requirement— that the state is not permitted to act inequitably in its dealings with the various religions represented in the country and that it should act evenhandedly in this regard.76 Sachs J is even more demanding since, according to him, the state is not allowed to send out a (symbolic) message that the state is favoring one specific religious creed over the others.77 Both Sachs J and O’Regan J appear to acknowledge in their analysis of the freedom of religion that “a government which remains passive when the free exercise of minority religions is made impossible by the dominant forces in society is implicated in the violation of the freedom (of religion).”78 Only subsequent case law will demonstrate whether these different opinions within the Court will tend to converge more and, as a consequence, determine more unambiguously what section 15 requires of the state regarding the accommodation of the considerable religious diversity in South Africa.79

The Constitutional Building Blocks

155

The section of the South African Bill of Rights that deals with the freedom of speech confirms both ways in which that freedom can be relevant for minority protection.80 Concerning the protection it offers to expressions of the separate way of life for members of “minorities,” it is important to point out that “expression” would be broader than mere speech and would also include symbolic speech and expressive conduct.81 Second, the explicit exclusion of hate speech on the basis of inter alia race, ethnicity, and religion from the protected speech is not only in line with international standards but is also related to South Africa’s specific history. Such exclusion is understood to offer indirect protection to members of cultural or ethnic minorities82 but is, however, not entirely non-contentious. Its exact import (and effect) will no doubt continue to be hotly debated in the coming years. It is indeed likely that: This is one arena in which the conflict between freedom of expression and dignity and equality will play itself out against the background of the constitutional commitment to reconciliation. The contribution of hate propaganda to political debate will have to be balanced against the ways in which such expression deters participation in public life, offends human dignity and consequently undermines equality.83

Only the actual application and implementation of this provision will reveal whether it is successful in improving mutual respect and tolerance among the distinctive population groups thus effectively, albeit indirectly, contributing to minority protection. Although the Constitutional Court itself has not yet dealt with a case on freedom of expression, the South African courts tend to accept and underline the primary importance of freedom of speech in a democratic society valuing diversity.84 Furthermore, jurisprudence in this sense reflects a strict approach to prior restraint upon speech, especially as it concerns criticism regarding politics,85 which underlines the need for openness and tolerance towards the voicing of dissent and divergent opinions. The above review tends to demonstrate that all individual human rights that are especially relevant for (members of) minorities are present in the South African Bill of Rights, albeit their exact contribution to minority protection is not yet clear. Regarding the right to self-determination, it is appropriate to repeat at this point that although section 235 does not give any right whatsoever, it does keep the door ajar for several kinds of implementations of the right to selfdetermination, including those with a territorial dimension. Nevertheless, the discretion given to the national legislator in this regard casts doubts about the future of (certain) territorial forms of self-determination in South Africa. The South African Constitution contains several applications of the internal dimension of the right to self-determination. Minority rights and minority protection measures like section 31 and the Commission and the cultural councils provided for in section 185, 1996 Constitution can be considered implementations of the right to self-determination in its internal dimension. Other provisions of the Bill of

156

Minority Protection in Post–Apartheid South Africa

Rights are arguably aimed at minority protection and could thus be seen in this light as well, namely section 29(2) regarding the medium of instruction, section 30 on the right to use the language and participate in the culture of choice, and section 15 (3) with the possibility for the legislator to recognize marriages according to certain religious rites and traditions and systems of personal and family law that are religiously inspired. The (tentative) recognition of customary law and the institution of traditional leaders can also be related to minority protection/minority rights and thus measures of internal self-determination for the population groups concerned. The provision in the Constitution on the Pan South African Language Board and its mandate to further multi-lingualism also seems to fit into this paradigm. Forms of territorial autonomy (including federalism86) and certain forms of personal autonomy can be considered as measures of internal self-determination. However, the most direct contribution of territorially based mechanisms to minority protection/accommodation of population diversity require that the population groups concerned have a certain degree of territorial concentration. In view of the relative concentrations of several ethnic and certain racial groups in the provinces of South Africa, the degree of provincial autonomy, especially in view of identity-related matters, could amount to another feature of internal selfdetermination for the population groups concerned.87 CONCLUSION Individual human rights, minority rights, and the right to self-determination are to a certain extent enshrined in the South African constitution, which appears to indicate that a certain, adapted combination of these three categories of rights is considered appropriate and adequate to accommodate South Africa’s population diversity. However, the eventual balance between unity and diversity will, to an important degree, be determined by the actual “practice” or the implementation/application of these constitutional provisions.88 I am in any event not advocating that absolute supremacy be given to the accommodation of South Africa’s population diversity89 over and above other crucial values of the postapartheid dispensation like democracy and nation building. Without wanting to deny the importance of a process of nation building in South Africa, especially in view of the long and devastating apartheid years,90 I believe there should definitely, and also in practice, be sufficient protection and promotion of the separate identity of “minorities.”91 Whereas certain indications suggest that unity and nation building concerns currently tend to get precedence,92 a positive attitude to issues of minority protection might be easier if one realizes that “the recognition of cultural diversity and identity is not necessarily incompatible with such unity.”93 The following statement of Currie, dealing with minority rights in the 1996 Constitution, correctly stresses the importance of “real” or “effective” minority rights, and also of broader themes of minority protection, for the building of the South African, post-apartheid nation:

The Constitutional Building Blocks

157

[W]hatever its historical force, an argument that minority identity and institutions should yield to the necessity of national unity should be treated with considerable circumspection. The rationale for the protection of minority rights is to protect minorities from unwanted assimilation and concomitant extinction of their identity. To authorise state intervention in constitutionally protected aspects of cultural life in the name of nation building would be to discount the value of those protections for the project of an open and democratic society based on human dignity, equality and freedom.94

The actual implementation via legislation and the further application of the several constitutional avenues available to further the accommodation of South Africa’s population diversity will indeed be crucial for any overall assessment of the extent to which minority protection is realized in post-apartheid South Africa.95 NOTES 1. Proclamation by the President of the Republic of South Africa, R 6 of 1997. 2. Chapter 9 of the 1996 Constitution. See also D. Van Wyk, “Introduction to the South African Constitution” in D. Van Wyk et al. (eds.), Rights and Constitutionalism. The New South African Legal Order, Kenwyn, Juta, 1994,160. 3. Section 182, 1996 Constitution of South Africa. The office of the Public Protector was already contemplated in section 110 IC and further regulated by the Public Protector Act, No 23 of 1994. Several reports of the public protector have been made public. Some are on specific themes; others are half-yearly reports to the National Assembly as required by section 181 (5) of the 1996 Constitution. Examples of the special reports include the two reports on the Sarafina II scandal and the misuse of donor funds by the department of health (reports 1 and 2) and report 3 on the progress and integrity of the senior certificate examination. 4. Section 184 (1) and (2)(b) of the 1996 Constitution. The Human Rights Commission was also already provided for in section 115 of the 1993 Constitution and further regulated by the Human Rights Commission Act, No 54 of 1994, which only came into force in September 1995. For an enumeration of key programs of the South African Human Rights Commission, see its various annual reports to the National Assembly. 5. For a critical assessment of the work of (inter alia) the Human Rights Commission, the Commission on Gender Equality and the Public Protector, see J. Sarkin, “An Evaluation of the Role of the Independent Complaints Directorate for the Police, the Inspecting Judge for Prisons, the Legal Aid Board, the Human Rights Commission, the Commission on Gender Equality, the Auditor-General, the Public Protector and the Truth and Reconciliation Commission in developing a Human Rights Culture in South Africa,” SA Public Law 2000, 402–411. The Chair of the SAHRC also accused the government in June 2001 of giving the Commission the “Cinderally treatment.” He highlighted as especially problematic that the questions about the independence of the Commission have not been resolved, which was best dramatized by the inadequate budget of the Commission: X, “SAHRC says it is being badly treated,” [www.anc.org.za/ cgi-bin/shownews], 8 June 2001. 6. Especially the Human Rights Commission, its exact role, powers, and functions were extensively debated in the Constitutional Sub-Committee, see X, Constitutional Talk Number 10–11 August 1995, [www.constitution.org.za/talk/10 pg9.html], 1–3.

158

Minority Protection in Post–Apartheid South Africa

7. See, however, Du Plessis’s (a member of PANSALB) remark that the task of the Communities Commission is rather to deal with minorities whereas the Board’s mandate is to promote multi-lingualism and to focus on languages rather than linguistic groups (L.T. Du Plessis, “The Pan South African Language Board’s Liaison with the Commission” in X (ed.) Proceedings of a Conference held in Pretoria (18–19 March 1997) on the Commission for the Promotion and Protection of Rights of Persons Belonging to Cultural, Religious and Linguistic Communities, Pretoria, VSC, 1997, 141–143). This analysis clearly testifies about the sensitivity surrounding minorities and minority protection in post-apartheid South Africa as it seems difficult to deny that working towards multi-lingualism, even without focus on linguistic groups, still benefits the speakers of the respective (minority) languages extensively. Analogous remarks have been made regarding the approach of the European Charter for Regional or Minority Languages of the Council of Europe. 8. Cf. V. Sacks, “Multiculturalism, Constitutionalism and the South African Constitution,” Public Law 1997, 677. 9. Section 6 (5), 1996 Constitution. 10. Cf. The long title of the Pan South African Language Board Act (No 59, 1995) as that mentions that PANSALB’s task is: “To provide for the Recognition, Implementation and Furtherance of multilingualism in the Republic of South Africa.” Cf. I. Currie, “Official Languages” in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, Kenwyn, Juta, loose-leaf, 37.15. It is nevertheless important that no provision was made for representation on the board from each of the 11 language groups as direct representation on the basis of ethnolinguistic factors would inevitably lead to undue ethnolinguistic centrism and possibly increase the potential for language conflict. 11. Whereas South Africa’s constitution has many liberal features, it does acknowledge that constraints on the power of the majority make democracy stronger (cf. G. Erasmus, “Introduction to the Constitution and the Bill of Rights” in J. De Waal et al. (eds.), The Bill of Rights Handbook 1998, Kenwyn, Juta, 1998, 9). Constitutional provisions with a minority protection aim can be considered as one of the constraints on pure majority rule. 12. X, “Parly, Provinces to Hold Simultaneous Cultural Rights Debate,” [www.anc.org.za/ cgi-bin/shownews], 27 July 1998. De facto, two provinces held these debates on different dates, namely the Western Cape and Kwazulu-Natal. 13. The then Minister of Constitutional Development (V. Moosa) said in his speech in the National Assembly on Friday 16 May 1997 inter alia, “Government does not intend to rush into the establishment of this Commission before extensive discussion has taken place in society as to what its shape and form should be” (document given by the National Department of Constitutional Development). Arguably there was also a degree of indeterminateness on the part of the ANC as to how to deal with this sensitive matter. It should also be underlined in this respect that already on 26 March 1998, two private bills were introduced by a member of the NP (effectively representing the view of the entire party on this issue), namely one on “Die Kommissie vir die Bevordering en Beskerming van die Regte van Kultuur-, Godsdienstige en Taalgemeenskappe” (W-98) and one on “Kultuur-, Godsdienstige en Taalrade” (W-98) but that no debate was organized until 4 August 1998. This presumably indicates that these private proposals have pressured the ANC to finalize its views in this respect so that official action could be undertaken.

The Constitutional Building Blocks

159

14. Interviews with Zubeida Desei and Theo Du Plessis, both members of PANSALB, whom I spoke to several times in the course of 1997 and 1998. Cf. Du Plessis, “The Pan South African Language Board’s Liaison with the Commission,” 136. 15. Interview with Neville Alexander, Cape Town, 27 March 1998. 16. Section 157 (3)(a) of the 1996 Constitution of South Africa. 17. Cf. inter alia Van Wyk, “Introduction to the South African Constitution,” 168. 18. See also M.A. Burnham, “Cultivating a Seedling Charter: South Africa’s Court Grows Its Own Constitution,” Michigan Journal of Race and Law 1997, 32–33; A. Chaskalson, “Judging Human Rights in South Africa,” E.H.R.L.R. 1998, 185–186; Erasmus, “Provincial Government under the 1993 Constitution. What Direction will it Take?” 413; Van Wyk, “Introduction to the South African Constitution,” 168. 19. Section 38(c) and (e) of the 1996 Constitution. Cf. J. De Waal, “Standing, Ripeness and Mootness” in J. De Waal et al. (eds.), The Bill of Rights Handbook 1998, Kenwyn, Juta, 1998, 69–72. 20. See in this regard the claim that affirmative action as regulated in the Employment Equity Bill would amount to a reinstatement of apartheid’s racial classifications (X, “Bill Does Not Reintroduce Apartheid Classifications: Mdladlana,” [www.anc.org.za/ cgi-bin/shownews], 21 July 1998). 21. Section 39 (1)(b), 1996 Constitution. See also section 233, 1996 Constitution. 22. Azanian Peoples Organization (AZAPO) and Others v The President of the Republic of South Africa, Constitutional Court of South Africa, CCT 17/96, 1996 (4) SA 671 (CC), 1996 (8) BCLR 1015 (CC), § 27. Cf. R.C. Blake, “The World’s Law in One Country: The South African Constitutional Court’s Use of Public International Law,” South African Law Journal 1998, 672. 23. Blake points out that the sources of public international law used most by the Court are decisions of international and regional tribunals, followed by international conventions, and thirdly the writings of international law scholars (Blake, “The World’s Law in One Country: The South African Constitutional Court’s Use of Public International Law,” 673). 24. De Waal and Currie argue that the Constitutional Court de facto tends to rely more on foreign case law (J. De Waal and I. Currie, “Interpretation of the Bill of Rights” in J. De Waal et al. (eds.), The Bill of Rights Handbook 1998, Kenwyn, Juta, 1998, 109). 25. K. Henrard, “Het Grondwettelijk Hof van Zuid-Afrika: Samenstelling, Procedure en Belangrijke Ontwikkelingen in de Jurisprudentie,” Jura Falconis 1996, 856; Sacks, “Multiculturalism, Constitutionalism and the South African Constitution,” 686. Cf. Chaskalson P in S v Makwanyane and Another, CCT 3/94, 6 June 1995, 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC); Mahomed DP in AZAPO and Others v The President of the Republic of South Africa, CCT 17/96, 25 July 1996, 1996 (4) SA 671 (CC), 1996 (8) BCLR 1015 (CC), § 35. 26. Cf. inter alia Sacks, “Multiculturalism, Constitutionalism and the South African Constitution,” 691. 27. Currie, “Minority Rights: Culture, Education and Language,” 35.2. 28. Sacks, “Multiculturalism, Constitutionalism and the South African Constitution,” 686–687. 29. Sacks, “Multiculturalism, Constitutionalism and the South African Constitution,” 690. 30. Currie, “Minority Rights: Culture, Education and Language,” 35.3; B. Oomen, “Group Rights in Post-Apartheid South Africa: the Case of the Traditional Leaders,”

160

31.

32. 33. 34. 35. 36.

37. 38. 39. 40. 41. 42. 43. 44. 45.

46. 47.

48.

49.

50. 51.

Minority Protection in Post–Apartheid South Africa

paper presented at UIAES Conference in Williamsburg (26 July–1 August 1998), unpublished but on file with the author, 7. Cf. F. Cachalia, “Citizenship, Muslim Family Law and a Future South African Constitution: A Preliminary Enquiry,” Tydskrif vir Hedendaagse Romeins-Hollandse Reg 1993, 399. Cf. Currie, “Minority Rights: Culture, Education and Language,” 35. 2. Sacks, “Multiculturalism, Constitutionalism and the South African Constitution,” 691. Cf. H.A. Strydom, “Minority Rights Issues in Post-Apartheid South Africa,” Loyola of Los Angeles International & Comparative Law Journal 1998, 897–907. Cf. Sacks, “Multiculturalism, Constitutionalism and the South African Constitution,” 690–691. Currie, “Indigenous Law,” 36.1–36.3; Oomen, “Group Rights in Post-Apartheid South Africa: The Case of the Traditional Leaders,” 19–20; Sacks, “Multiculturalism, Constitutionalism and the South African Constitution,” 679. See also Strydom, “Minority Rights Issues in Post-Apartheid South Africa,” 906. Sacks, “Multiculturalism, Constitutionalism and the South African Constitution,” 679; Strydom, “Minority Rights Issues in Post-Apartheid South Africa,” 907. Cf. Sacks, “Multiculturalism, Constitutionalism and the South African Constitution,” 691. Section 36 (1), 1996 Constitution. Currie, “Minority Rights: Culture, Education and Language,” 35.30. Currie, “Minority Rights: Culture, Education and Language,” 35.30. Currie, “Minority Rights: Culture, Education and Language,” 35.31. Strydom, “Minority Rights Issues in Post-Apartheid South Africa,” 904. Inter alia Sacks, “Multiculturalism, Constitutionalism and the South African Constitution,” 691. Inter alia Strydom, “Minority Rights Issues in Post-Apartheid South Africa,” 910–911. Cf. Y. Carrim, “Minorities Together and Apart,” 49; N. Mandela, “Citizens of a Single Rainbow Nation” in W. James et al. (eds.), Now That We Are Free. Coloured Communities in a Democratic South Africa, Johannesburg, IDASA, 1996, 8. Cf. E. Cameron, “Rights, Constitutionalism and the Rule of Law,” South African Law Journal 1997, 510. Inter alia Currie, “Minority Rights: Culture, Education and Language,” 35.2; Sacks, “Multiculturalism, Constitutionalism and the South African Constitution,” 673–678; Strydom, “Minority Rights Issues in Post-Apartheid South Africa,” 905. Cf. J. De Waal, “Equality” in J. De Waal (ed.), The Bill of Rights Handbook 1998, Kenwyn, Juta, 1998, (152) 153; J. Kentridge, “Equality” in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, Kenwyn, Juta, loose-leaf, 14.1. Cf. T.P. Van Reenen, “Equality, Discrimination and Affirmative Action: An Analysis of Section 9 of the Constitution of the Republic of South Africa,” SA Public Law 1997, 152. Inter alia Kentridge, “Equality,” 14.5–14.6, 14.11, 14.36. See also De Waal, “Equality,” 155; Van Reenen, “Equality, Discrimination and Affirmative Action: an Analysis of Section 9 of the Constitution of the Republic of South Africa,” 154. See also De Waal, “Equality,” 159, 174; N. Smith, “Affirmative Action under the New Constitution,” S.A.J.H.R. 1995, 101. See also W. Nkuhlu, “Affirmative Action for South Africa in Transition: From Theory to Practice” in C. Adams (ed.), Affirmative Action in a Democratic South Africa, Kenwyn, Juta, 1993, 13; F. Sonn, “Afrikaner Nationalism and Black Advancement as

The Constitutional Building Blocks

52.

53.

54.

55.

56.

57. 58. 59. 60.

61. 62. 63.

64.

161

Two Sides of the Same Coin” in C. Adams (ed.), Affirmative Action in a Democratic South Africa, Kenwyn, Juta, 1993, 1. Section 36, 1996 Constitution: “The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors including (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose.” Woolman, “Out of Order? Out of Balance? The Limitation Clause of the Final Constitution,” 110. Cf. J. De Waal and I. Currie, “Limitation” in J. De Waal et al. (eds.), The Bill of Rights Handbook 1998, Kenwyn, Juta, 1998, 127. For an assessment of the limitations clause of the interim Constitution that seems still relevant for the 1996 Constitution, see A.J. Steenkamp, “The South African Constitution of 1993 and the Bill of Rights,” H.R.Q. 1995, 119. The Constitutional Court also confirmed this in the first certification judgement of the national constitution at § 90. The distinctive subsections of section 37 of the 1993 Constitution deal with the situations in which a state of emergency can legitimately be declared, the procedural and time requirements in this regard, the judicial review of such declaration and measures taken under it, the restrictions to the possible derogatory measures, and an enumeration of inderogable rights. Cf. Steenkamp, “The South African Constitution of 1993 and the Bill of Rights,” 120. First Certification Judgement of the national Constitution, CC, § 95. The Court was, however, critical about the irrationality of the distinction between rights well and not derogable during state of emergencies (ibid.), which was addressed in the amended text. An analogous assessment was made regarding the state of emergency provision in the 1993 Constitution. See G. Erasmus, “Limitation and Suspension” in D. Van Wyk et al. (eds.), Rights and Constitutionalism: The New South African Legal Order, Kenwyn, Juta, 1994, 650–663; Steenkamp, “The South African Constitution of 1993 and the Bill of Rights,” 120. Second Certification Judgement of the National Constitution, CC, §§ 23–27. Section 17, 1996 Constitution: “Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.” Section 18, 1996 Constitution: “Everyone has the right to freedom of association.” Section 19 (1), 1996 Constitution: “Every citizen is free to make political choices, which includes the right (a) to form a political party; (b) to participate in the activities of, or recruit members for a political party; and (c) to campaign for a political party or cause.” Cf. Currie, “Minority Rights: Culture, Education and Language,” 35.32. S. Woolman, “Freedom of Assembly” in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, Kenwyn, Juta, loose-leaf, 21.1. S. Woolman, “Freedom of Association” in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, Kenwyn, Juta, loose-leaf, 22.2, who underlines that cultural associations sustain cultural practices and affiliations, which is of obvious relevance to minorities and their right to identity. Woolman, “Freedom of Association,” 22.10–22.11. There is of course a divergence of opinion on whether it would be necessary to show that certain people are still effectively disadvantaged before they would qualify for affirmative action measures.

162

Minority Protection in Post–Apartheid South Africa

65. Section 14, 1996 Constitution, which is virtually identical to the corresponding provision in the 1993 Constitution, reads “Everyone has the right to privacy, which includes the right not to have (a) their person or home searched; (b) their property searched; (c) their possessions seized, or (d) the privacy of their communications infringed.” It is consequently perfectly legitimate to discuss constitutional court cases dealing with the right to privacy under the 1993 Constitution as being equally relevant to section 14 of the 1996 Constitution. 66. Cf. D. McQuoid Mason, “Privacy” in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, Kenwyn, Juta, loose-leaf, 18.1 who argues at 18.8 that “[p]rivacy rights permit individuals to make important decisions about their lives without interference by the state. These rights are generally understood to give the individual—or a small intimate group—control over such matters as marriage, . . . family relationships, child-rearing and education.” (italics added) 67. Mistry v the Interim National Medical and Dental Council of SA and Others, Constitutional Court of South Africa, CCT 13/97, 29 May 1998, 1998 (4) SA 1127 (CC), § 30 (hereinafter: Mistry, CC, § . . . ). 68. Sachs J in Mistry at § 27 refers to a “continuum of privacy rights which may be regarded as starting with a wholly inviolable inner self, moving to a relatively impervious sanctum of the home and personal life and ending in a public realm where privacy would only remotely be implicated.” 69. Bernstein and Others v Von Wielligh Bester No and Others, Constitutional Court of South Africa, CCT 23/95, 27 March 1996, 1996 (2) SA 751 (CC), 1996 (4) BCLR 518 (CC), § 67. 70. Section 15, 1996 Constitution. 71. See also Lawrence v The State and Another; Negal v The State and Another; Solberg v the State and Another, Constitutional Court of South Africa, CCT 38–40/96, 6 October 1997, 1997 (4) SA 1176 (CC), 1997 (10) BCLR 1348 (CC), §§ 101, 119 and 143 which makes clear that all judges of the Constitutional Court endorse this analysis. 72. Lawrence v The State and Another; Negal v The State and Another; Solberg v the State and Another, CCT 38–40/96, 6 October 1997, 1997 (4) SA 1176 (CC), 1997 (10) BCLR 1348 (CC) (hereinafter: Lawrence v S, CC, § . . . ). 73. J. De Waal, “Religion, Belief and Opinion” in J. De Waal et al. (eds.), The Bill of Rights Handbook 1998, Kenwyn, Juta, 1998, 226. 74. Cf. De Waal, “Religion, Belief and Opinion,” 226–230; P. Farlam, “The Ambit of the Right of Freedom of Religion: A Commentary on S v Solberg,” South African Journal of Human Rights 1998, 298. 75. Lawrence v S, CC, § 104. 76. Lawrence v S, CC, §§ 121–122. 77. Lawrence v S, CC, §§ 159, 172. 78. De Waal, “Religion, Belief and Opinion,” 230. Lawrence v S, CC, §§ 122, 160. 79. Farlam remarks in any event that “the kernel of the right to freedom of religion in Solberg is in tune with the traditional understanding of the right in international law and in many foreign jurisdictions and should not cause much controversy.” (Farlam, “The Ambit of the Right of Freedom of Religion: A Commentary on S v Solberg,” 309). 80. Section 16, 1996 Constitution: “(1) Every person has the right to freedom of expression, which includes (a) freedom of the press and other media; (b) freedom to receive or impart information or ideas; (c) freedom of artistic creativity; and (d) academic freedom and freedom of scientific research. (2) The right in subsection (1) does not

The Constitutional Building Blocks

81. 82. 83.

84. 85. 86. 87.

88.

89. 90. 91. 92.

93. 94. 95.

163

extend to (a) propaganda of war; (b) incitement of imminent violence; or (c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.” Inter alia J. De Waal, “Expression” in J. De Waal et al. (eds.), The Bill of Rights Handbook 1998, Kenwyn, Juta, 1998, 235; Marcus & Spitz, “Expression,” 20.17. Currie, “Minority Rights: Culture, Education and Language,” 35.2. Marcus & Spitz, “Expression,” 20.48. See also De Waal, “Expression,” 242–243. There have already been several incidents implicating members of political parties in alleged hate speech, see inter alia “Odendaal Apologises to Jewish Community,” [www.anc.org.za/cgi-bin/shownews], 13 May 1997; “Parties call on ANC officials to refrain from Hate Speech,” [www.anc.org.za/cgi-bin/shownews], 17 June 1998. Inter alia Mandela v Falati, Supreme Court, Witwatersrand Local Division, 8 August 1994, 1994 (4) BCLR 1, 2 H (hereinafter Mandela v Falati, Supreme Court, . . . ). Mandela v Falati, Supreme Court, 9 B-C; Government of the RSA v The Sunday Times Newspaper, 1995 (2) BCLR 182 (T). See also Currie, “Minority Rights: Culture, Education and Language,” 35.35. Measures that can be considered as restrictions on majority rule can be argued to belong to the broad realm of internal self-determination. Although I do not intend to be exhaustive in this regard, relevant provisions of the South African constitution are in section 2 enshrining the supremacy of the Constitution, the existence of the Bill of Rights with its binding force for (inter alia) legislature, executive, judiciary, and all organs of state and the requirement of special majorities and special procedures to amend the Constitution. Oomen, “Group Rights in Post-Apartheid South Africa: The Case of the Traditional Leaders,” 20; Strydom, “Minority Rights Issues in Post-Apartheid South Africa,” 904, 914. Sacks, “Multiculturalism, Constitutionalism and the South African Constitution,” 680. Currie, “Minority Rights: Culture, Education and Language,” 35.30. Currie, “Minority Rights: Culture, Education and Language,” 35.31; Sacks, “Multiculturalism, Constitutionalism and the South African Constitution,” 676. Several authors underscore in this respect that most emphasis (even at the level of the Constitution, thus not even taken into account implementation hurdles) is on national unity, equality, and individual autonomy as opposed to group autonomy, see inter alia Currie, “Indigenous Law,” 36.30; Sacks, “Multiculturalism, Constitutionalism and the South African Constitution,” 672. Cf. Jooste, “The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities,” 50. Cf. Cross & Mkwanazi-Twala, “The Dialectic Unity and Diversity in Education: Its Implications for a National Curriculum in South Africa,” 15. Currie, “Minority Rights: Culture, Education and Language,” 35.31. See inter alia Stydom, “Minority Rights Issues in Post-Apartheid South Africa,” 904; Sacks, “Multiculturalism, Constitutionalism and the South African Constitution,” 691. Cyrill Ramaphosa, the chairperson of the Constitutional Assembly, also pointed out after the 1996 Constitution’s positive certification by the Constitutional Court, “[O]n paper, it is the most advanced constitution in the world, one that enshrines human rights, democracy and open accountable government. Now we have to make it work” ([www.anc.org.za/lists/news], 13 December 1996).

6

The Implementation and Application Phase Concerning Minority Protection/ Accommodation of Population Diversity in Post–Apartheid South Africa

INTRODUCTION: OVERVIEW It is important to evaluate the actual implementation of the constitutional provisions and their tentative promise regarding the accommodation of South Africa’s population diversity. It can be postulated that at a theoretical level, or level of principles, the first democratic Constitution of South Africa addresses issues of minority protection through a combination of mechanisms. That combination reflects the interrelation between individual human rights, minority rights, and the right to self-determination for the elaboration of an adequate system of minority protection so as to realize the right to identity of minorities within a democratic state. However, it has already been mentioned several times that an accurate picture of the way post-apartheid South Africa deals with minority protection issues can only be obtained through a critical analysis of constitutional implementation and actual practice. Although the theme of “unity in diversity” pervades the general discourse, it is essential to analyze whether, and to what extent, an appropriate balance is reached that furthers both sides of the theme.

166

Minority Protection in Post–Apartheid South Africa

In this chapter an overview of the various implementation initiatives at national level is given. A brief description of the relevant developments is followed by a tentative assessment of these measures in terms of minority protection/ accommodation of population diversity, using the criteria of substantive equality and the right to identity. Since most implementation measures, including white papers and legislation, stress the central theme of “unity in diversity,” the protection of the right to identity is analyzed in a discussion about the extent to which the diversity pole of that theme is actually accommodated. Throughout the discussion and analysis, the rights at issue are described in terms of individual human rights, minority rights, or the right to self-determination so as to provide further indications of the realization of these three categories of rights in the implementation phase. Finally, the last section analyzes and evaluates South Africa’s policy choices and developments in terms of the interrelation between individual human rights, minority rights, and the right to self-determination for an adequate minority protection. It needs to be emphasized, however, that this assessment is rather tentative and even slightly premature as several policy domains are still in the process of being developed and are continuously becoming more concrete. South Africa is still in the middle of a far-reaching transformation and is only starting to determine the appropriate methods of governing its extensive population diversity via trial and error. Although all of the policies relevant to this work will be discussed, some will be addressed at more length than others. The relative length at which the several issues are analyzed is determined by factors like importance, sensitivity in the country concerned, and degree of further implementation realized. Most parts begin with further theoretical remarks regarding the possible interpretation of the relevant constitutional provisions and then describe and discuss any relevant case law and the respective policy and legislative documents dealing with their implementation. The implementation of the equality principle and the policy regarding languages and education will be extensively covered because of their importance for minority protection in general and because of their particularly sensitive nature in South Africa. The themes of the Afrikaner Volksstaat, “minority rights,” measures addressing the religious population diversity, and the extent to which South Africa’s population diversity is accommodated in its policy regarding culture (including heritage and media) will be analyzed and evaluated in subsequent sections. The developments regarding the integration of customary law into the national legal system and of the institution of traditional leaders into a democratic state are also relevant and will be discussed. Finally, factors that are more indirectly related to minority protection, federalism and (other) features of power sharing, are briefly touched upon.

EQUALITY Nondiscrimination Equality deserves to be discussed first, as it is the foundational value of the new, democratic, constitutional dispensation. It should be underlined that the

The Implementation and Application Phase

167

equality principle, as enshrined in the South African Constitution, is not limited to formal equality but rather embraces the principle of substantive equality. The right to equality is generally recognized as an individual human right and one that is of crucial importance for minorities and minority protection. One of its facets, namely nondiscrimination, has been identified as one of the two pillars of any full-blown system of minority protection, while the principle of substantive equality is an essential foundation for the justification of “special” measures for (persons belonging to) minorities. Case Law of the Constitutional Court. The case law of the Constitutional Court of South Africa1 dealing with the equality principle concentrates mainly on the nondiscrimination provision. Whereas several of its important equality cases have been decided in terms of the 1993 Constitution, the Court assumed explicitly in The National Coalition for Gay and Lesbian Equality and Another versus the Minister of Justice and Others that its equality jurisprudence as developed in terms of section 8 of the Interim Constitution is equally applicable to section 9 of the 1996 Constitution.2 Although not a single case heard by the Constitutional Court is argued in terms of the affirmative action provision,3 the existing case law does reveal the importance of substantive equality in the new constitutional framework and its implications for an open, democratic, and plural society.4 Six cases will be discussed to explain the jurisprudence regarding the equality principle. The fourth case will reveal the difficulty of the ongoing search for an appropriate jurisprudential framework to deal with claims of unfair discrimination that relates to the specific history and current difficulties of South Africa.5 Prinsloo v Van der linde and Another6 and President of the Republic of South Africa and Another v Hugo7 are generally regarded as the first significant cases in the development of the existing jurisprudence regarding the equality clause by the Constitutional Court. Prinsloo is important because it makes significant clarifications about the content of the first two subsections of the equality clause and clarifies the way in which the concept “discrimination” is to be understood. The Court distinguishes “mere differentiation” as dealt with under section 8 (1), 1993 Constitution and “unfair discrimination” under section 8 (2), 1993 Constitution in such a way that section 8 (1) and the guarantee of equality before the law and equal protection of the law are shown to constitute a threshold requirement. “Mere differentiation” would be justified if there is a legitimate purpose and a rational connection between means and ends,8 but even if this requirement is fulfilled there may still be a problem of “unfair discrimination.”9 The South African nondiscrimination provision is rather peculiar because it adds the term “unfair” to discrimination, whereas in international law “discrimination” is understood to have a pejorative connotation. It is up to the Constitutional Court to make sense of that addition and to develop a sensible jurisprudence concerning the nondiscrimination principle. If one adopts an asymmetrical conception of discrimination, as is done in international law, one “acknowledges that harm caused by measures which disadvantage vulnerable and subordinate groups is a greater evil which merits more suspicion than

168

Minority Protection in Post–Apartheid South Africa

measures which disadvantage powerful and otherwise privileged groups.”10 Consequently, an asymmetrical conception of discrimination that confirms a substantive vision of equality can arguably imply that: the addition of “unfair” cannot add anything of substance to the prohibition of discrimination and is indeed dangerous if it implies that the international and national provisions of non-discrimination in other legal documents, which do not contain the adjective “unfair,” should be interpreted in a symmetrical way. From this perspective, it would be better to read the adjective “unfair” as rendering, beyond any doubt, the conception of discrimination in the South African Constitution asymmetrical, and not as having an independent meaning.11

However, the Constitutional Court opts for a different route and has devised different criteria to evaluate the “unfairness” and the “discrimination.” More recent case law indicates that the jurisprudence, as developed up till now, may not always lead to just results because the specific history of South Africa is not sufficiently taken into account. The Constitutional Court further clarifies in Prinsloo its interpretation of the concept “discrimination” in the South African constitution by distinguishing between the enumerated and the other grounds of differentiation.12 A differentiation on one of the enumerated grounds would constitute per se discrimination, whereas a differentiation on a different ground would require proof that the differential treatment infringes the fundamental human dignity of the person involved.13 In Hugo, the Constitutional Court explains the unfairness inquiry in a way that underscores its importance for purposes of minority protection/accommodation of population diversity. It also confirms that differentiations on one of the enumerated grounds amount to discrimination because of the automatically suspect nature of these grounds. The Court points out that section 8 (4), 1993 Constitution contains a rebuttable presumption of unfairness for differentiations/ discriminations on one of the enumerated grounds.14 According to the Court, “At the heart of the prohibition of unfair discrimination lies a recognition of the fact that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups.”15 This statement not only repudiates the apartheid past but also implicitly acknowledges the value of diversity, which is relevant for minority protection. The Court goes on to distinguish three criteria to evaluate the unfairness of an instance of discrimination. These criteria confirm the choice for a substantive vision of equality, which takes the concrete circumstances of the case into account. The Court argues that “[t]o determine whether that impact (of the discrimination on the persons concerned) was unfair it is necessary to look not only at the group who has been disadvantaged but also at the nature of the power in terms of which the discrimination was effected and also at the nature of the interests which have been affected by the discrimination.”16 Subsequent case law revealed that the

The Implementation and Application Phase

169

first and last factor are the most important. The first factor, “the nature of the group,” is intended to “make” the equality provision substantive (versus merely formal), whereas the last factor, “the nature of the interests affected,” clarifies that certain interests are so fundamental that even socially advantaged groups cannot be expected to tolerate their denial. These two factors have to go hand in hand because the first test requires advantaged groups to tolerate some discrimination, but the second ensures that there are limits to the tolerance that is expected. This test for unfairness thus necessitates an investigation of the specific circumstances, including the societal situation of the persons concerned. Furthermore, it indirectly acknowledges the need to redress disadvantages from the past while guaranteeing protection against injustice for the population groups that had formerly benefited from apartheid. Later case law slightly alters the formulation of the relevant considerations. However, the substantive assessment remains the same. In Harksen v Lane NO and Others17 and Hoffmann v South African Airways18 the Court enumerated the following considerations: “the position of the victim of the discrimination in society, the purpose sought to be achieved by this discrimination, the extent to which the rights or interests of the victim of discrimination have been affected, and whether the discrimination has impaired the human dignity of the victim.”19 The consideration “the purpose sought to be achieved by this discrimination” indeed seems a better criterion when evaluating whether or not a discrimination is unfair as it can be related to the criterion of “legitimate aim” in the nondiscrimination jurisprudence of the European Court of Human Rights. The Constitutional Court confirms this equality jurisprudence20 in Harksen v Lane NO and Others but also makes one further specification and distinguishes one additional stage of inquiry under the nondiscrimination provision. As regards the unfairness inquiry, the Court postulates that the three factors distinguished in Hugo “assessed objectively, will assist in giving precision and elaboration to the constitutional test of unfairness. They do not constitute a closed list. Others may emerge as our equality jurisprudence continues to develop. In any event it is the cumulative effect of these factors that must be examined and in respect of which a determination must be made as to whether the discrimination is unfair.”21 This specification tends to emphasize the need to take all relevant factors of a case into account when establishing the unfairness of the discrimination and highlights the substantive foundation of the constitutional equality provision. Furthermore, the Court adds a third stage of inquiry when it reasons that even if there has been a finding of unfair discrimination, that might still be saved under the general limitations clause.22 Finally, the Court presents a condensed overview of the constitutional analysis under the nondiscrimination provision of section 8, 1993 Constitution,23 which turns the case into a landmark judgement.24 Although the interpretation of the concept “discrimination” by the Constitutional Court of South Africa diverges from the international standard, all the distinctive stages of inquiry into prohibited discrimination taken together are more or less analogous to the nondiscrimination analysis under international law.25

170

Minority Protection in Post–Apartheid South Africa

The City Council of Pretoria v Walker 26 is important in several interrelated respects for the equality jurisprudence of the South African Constitutional Court. The case deals with racial discrimination, which is very sensitive in postapartheid South Africa, and also seems to indicate that the equality jurisprudence developed until then is not flawless.27 The facts at issue are the practice in Pretoria’s city council of charging different tariffs for municipal services in previously white (based on actual consumption) and previously black areas (flat rate) and also the practice of differential enforcement regarding failure to pay for these services, as legal steps to recover such arrears were only taken in respect of residents in the previously white areas. The Court judges that section 8 (1), 1993 Constitution is not violated because both differences in treatment are rationally connected to legitimate government objectives. It is underlined in this respect that the measures were of a temporary nature and furthermore “designed to provide continuity in the rendering of services by the council while phasing in equality in terms of facilities and resources during a difficult period of transition.”28 The Court then goes on to investigate the claim under section 8 (2)’s prohibition of discrimination for which it relies on the theory as formulated in Harksen. The case highlights the pervasive effects of apartheid and its policy of separate development since it deals with the issue of indirect discrimination on the basis of race as related to certain geographical areas. The Court underlines that “[t]he fact that the differential treatment was made applicable to geographical areas rather than to persons of a particular race may mean that the discrimination was not direct, but it does not . . . alter the fact that in the circumstances of the present case it constituted discrimination, albeit indirect, on the grounds of race.”29 An important feature of the case is that it evokes difficulties in finding a road to substantive equality in situations where a previously dominant minority is now nondominant and needs some protection, while it is also legitimate to take into account the ongoing, negative effects of apartheid on the side of the nonwhite population. According to the Court, the presumption of unfairness of section 8 (4), 1993 Constitution is applicable to all differentiations on the basis of one of the enumerated grounds, thus including cases of indirect discrimination. Consequently, the city council has to rebut the presumption and prove that the discrimination is not unfair in the circumstances.30 In its assessment of the unfairness of the discrimination, the Court relies on the factors set out in Harksen and makes several remarks that highlight the substantive nature of the equality clause as well as its commitment to provide reasonable protection for minorities. As regards the position of the respondent in society the Court argues that the apartheid government had dispensed many privileges on the basis of race and in favor of the white population group.31 It furthermore emphasized that “[s]ection 8 is premised on a recognition that the ideal of equality will not be achieved if the consequences of those inequalities and disparities caused by discriminatory laws and practices in the past are not recognized and dealt with.”32 Although there is an acknowledgement that the respondents “belong to a racial minority which could, in a political

The Implementation and Application Phase

171

sense, be regarded as vulnerable,” the Court remarks that “[c]ourts should however always be astute to distinguish between genuine attempts to promote and protect equality on the one hand and actions calculated to protect pockets of privilege at a price which amounts to the perpetuation of inequality and disadvantage to others on the other.”33 The Court confirms the various relevant considerations regarding equality in post-apartheid South Africa when it explains the meaning and implications of section 8, 1993 Constitution as amounting to “a guarantee that at least at the level of law-making and executive action, hurtful discrimination such as that which forms part of our painful history, will no longer be a feature of South African life. Equality is one of the core values of the Constitution. Whilst the section clearly calls for more than ‘formal equality’ and recognizes the need to redress past disadvantages, the guarantee that it gives extends to all sections of the community, not only those who have been disadvantaged in the past.”34 The Court considers the selective enforcement problematic and unfair since “[n]o members of a racial group should be made to feel that they are not deserving of equal ‘concern, respect and consideration’ and that the law is likely to be used against them more harshly than others who belong to other race groups.”35 The Court is apparently trying to find the right balance,36 in the current transitional period, for an appropriate approach towards the previously advantaged population group(s). This search is important for the accommodation of the population diversity of the country, since it is connected to concerns of substantive equality. Sachs J, in his partially dissenting opinion, nevertheless seems to point to certain flaws in the reasoning by the majority, when he criticizes the use of a per se test regarding discrimination for indirect differentiation on the basis of one of the enumerated grounds: For a question of indirect unfair discrimination under section 8 (2) to be raised, something more must be shown than differential impact on persons belonging to groups specified in section 8 (2) . . . to establish that the impact of the indirect differentiation is prima facie discriminatory on grounds specified in section 8 (2), the measure must at least impose identifiable disabilities, burdens or inconveniences, or threaten to touch on or reinforce patterns of disadvantage, or in some proximate and concrete manner threaten the dignity of equal concern or worth of the persons affected.37

Furthermore, he objects to the use of the presumption of unfairness under section 8 (4), 1993 Constitution to cases of indirect discrimination on one of the enumerated grounds, since “the presumption makes no sense at all when invoked to shield continuing advantage gained as a result of past discrimination from the side-winds of remedial social programs designed to reduce the effect of such structured advantage.”38 According to him, the differential enforcement policy does not amount to unfair discrimination: The less directly invasive the discrimination, the more substantial its legitimate social function, and the less it reinforces or creates patterns of systematic disadvantage, the less

172

Minority Protection in Post–Apartheid South Africa

likely is it to be unfair. The differential debt recovery measures were not taken because the inhabitants of old Pretoria were white. Nor did they in fact impose new burdens or disadvantages on the white inhabitants of Pretoria, who, as it happened in the circumstances were not a politically vulnerable minority, if that were relevant. Furthermore, looked at objectively, these measures could not be said to have impacted unfairly on them by reinforcing negative stereotypes or patterns of disadvantage associated with their skin color, nor did they affect their dignity or sense of self-worth.39

Sachs J’s reasoning points to the problems involved in trying to distinguish two stages in the discrimination inquiry, namely “discrimination” and “unfairness,” and implicitly confirms the asymmetrical conception of discrimination. His arguments also hint at a possible conflation of the human dignity test for discrimination and the unfairness inquiry as developed in Harksen.40 It will be important to follow the further development of the equality jurisprudence by the Constitutional Court. Although the focus on substantive equality will undoubtedly remain,41 the more detailed equality jurisprudence might very well undergo slight or even more serious changes, if more judges are going to adopt a critical approach to the Harksen principles.42 However, in later cases on the equality principle, the Constitutional Court seems to follow the Harksen line quite firmly. Two of these later cases deserve closer scrutiny, namely Hoffmann v SAA and Moseneke and Others v Master of the High Court. Hoffmann v SAA concerns the constitutionality of South African Airways’ practice of not employing people living with HIV as cabin attendants. In view of the widespread presence of the HIV virus in South Africa and the severe prejudice against people with HIV, this case sets an important benchmark. It should in any event be highlighted that the Court overall follows its Harksen jurisprudence regarding equality, now as applied to section 9 of the 1996 Constitution.43 The Court sets out by emphasizing that people “who are living with HIV/AIDS are one of the most vulnerable groups in our society. . . . In view of the prevailing prejudice against HIV positive people, any discrimination against them can . . . be interpreted as a fresh instance of stigmatization and . . . an assault on their dignity.”44 The Court took all available medical evidence into account and concluded that “[t]he fact that some people who are HIV positive may, under certain circumstances, be unsuitable for employment as cabin attendants, does not justify the exclusion from employment as cabin attendants of ALL people who are living with HIV. Where this to be the case, people who are HIV positive . . . would be vulnerable to discrimination on the basis of prejudice and unfounded assumptions. . . . This is manifestly unfair.”45 It is interesting that the Court underlines that whereas legitimate commercial requirements are an important consideration in determining whether to employ an individual, “we must guard against allowing stereotyping and prejudice to creep in under the guise of commercial interests.”46 The Court also justifiably points out that “[f]ear and ignorance can never justify the denial to all people who are HIV positive of the fundamental right to be judged on their merits.”47 Eventually the Court concludes that: “[h]aving regard to all these considerations,

The Implementation and Application Phase

173

the denial of employment to the appellant because he was living with HIV impaired his dignity and constituted unfair discrimination.”48 Finally, Moseneke and others v Master of the High Court49 is an important case as it deals with racial discrimination in the administration of deceased estates, a legacy of the apartheid that had not been rectified yet. Indeed, the facts underlying this case remind one that the transition in South Africa is still in full process.50 The effect of the provisions of the Act and the Regulations concerned was that “the Master of the High Court has no power to deal with intestate black estates, although he administers black estates where a will has been left, and all estates of white, colored and Indian people.”51 Once again the Court followed his Harksen jurisprudence regarding the equality inquiry. The Court considered that “[t]here can be no doubt that the section and the regulation both impose differentiation on the grounds of race, ethnic origin and color, and as such constitute discrimination which is presumably unfair in terms of section 9 (5) of the Bill of Rights.”52 Furthermore, given the history of racial discrimination in South Africa, the Court held that the “indignity occasioned by treating people different as ‘blacks’ . . . is not rendered fair by the factors identified by the Minister and the Master.”53 Finally, the Court rejected the purported justification as it: cannot accept that the provisions are reasonable and justifiable in an open and democratic society based on equality, freedom and dignity. No such society would tolerate differential treatment based solely on skin color, particularly where the legislative provisions under consideration formed part of a larger package of racially discriminatory legislation which disadvantaged black people systematically and effectively.54

Consequently, the Constitutional Court held the relevant sections of the Act and the regulation to be inconsistent with the Constitution and invalid.55 Other Relevant Case Law. Although there has not yet been a case on affirmative action that reached the Constitutional Court, the inherent difficulties are clearly reflected in the Walker Case since complaints of unfair discrimination by the white population group are also likely to be voiced against (certain) affirmative action policies/legislation.56 The Public Servant’s Association of South Africa and Swanepoel v the Minister of Justice and Others57 is a case (in the Transvaal Provincial Division of the High Court) that explicitly deals with the interaction between the prohibition of unfair discrimination and the constitutional clause allowing for affirmative action. Although the general legal regulation and policy documents regarding affirmative action in the public service have been updated and changed now, the case does establish certain important principles regarding affirmative action versus nondiscrimination. The applicants in the case argued that white males with more expertise than their nonwhite counterparts were not appointed to certain posts in the office of the state attorney because of their gender and race, which would amount to unfair discrimination. After a review of the facts as presented by the parties the

174

Minority Protection in Post–Apartheid South Africa

Court concluded that there was proof of discrimination, which was presumed to be unfair until rebutted by the Ministry of Justice.58 The Court also postulated that it would not be sufficient to merely label certain measures as amounting to “affirmative action,” as envisaged by section 8 (3)(a), 1993 Constitution.59 According to the Court, the constitutional requirement that “the public service shall promote an efficient public administration broadly representative of the South African Community”60 (italics added) cannot be seen as an automatic license to discriminate against others.61 The Court concluded that the Ministry of Justice had violated the constitutional prohibition of unfair discrimination. The Court also stressed that affirmative action should be applied with a sufficient discernible rationale and should not amount to a blanket refusal of candidates on the basis of race (or gender), so as not to amount to unfair discrimination in violation of section 8 (2), 1993 Constitution.62 The case was not appealed against but it will be interesting to see how the Constitutional Court will deal with claims of unfair discrimination versus affirmative action policies and actions.63 Promotion of Equality and Prevention of Unfair Discrimination Act. Finally, prior to analyzing the various initiatives regarding affirmative action, it is important to discuss the Promotion of Equality and Prevention of Unfair Discrimination Act (Act no 4 of 2000, 9 February 2000). The Bill was prepared by the Equality Legislation Drafting Unit, which was launched in May 1998.64 This Unit’s goal was to prepare draft legislation to prevent or prohibit unfair discrimination based on race, sex, gender, color, disability, or sexual orientation.65 Ultimately, the work of this drafting unit was meant to enable Parliament to pass anti-discrimination legislation before 8 February 2000, as required by the 1996 Constitution.66 The drafting of the legislation took a long time and revealed how controversial the issues involved are. Among the problematic features raised were the issue of training and appointment of the judges for the special equality courts, the exact scope of the Bill—would it cover the prohibition of hate speech—and possible negative implications for the economy. Concerns were also raised about the complex structure and purported inconsistencies in the Act.67 Whereas the original bill identified specific sectors—the insurance industry, health care, education, sports and clubs, pensions and professions—the ANC agreed to drop this specific chapter on sectoral discrimination since several objections were raised. A schedule to the Act does take up an illustrative list of unfair practices in certain sectors as it was felt to be important to indicate that the state must take measures in respect of a set of practices that definitely need redress.68 The Equality Act sets out to facilitate the transition to a democratic society, united in its diversity, marked by human relations that are caring and compassionate, and guided by the principles of equality, fairness, equity, social progress, justice, human dignity, and freedom.69 A chapter on definitions, objects, interpretation, guiding principles, and application of the Act is followed by a chapter on the Prevention, Prohibition and Elimination of Unfair Discrimination, Hate Speech and Harassment. Chapter 3 regulates the burden of proof and

The Implementation and Application Phase

175

the determination of fairness or unfairness. Indeed, the Act takes up the expression “unfair discrimination” used in section 9 of the 1996 Constitution. Chapter 4 regulates the composition and procedure of the Equality Courts, while chapter 5 is concerned with the promotion of equality and the respective responsibilities among the several role players. It is interesting to notice that the concept discrimination is defined following the wording of the international antidiscrimination conventions, while still subsuming the justification of the differentiation in the unfairness concept (unfair discrimination) and not as part of the concept discrimination itself.70 Next to a list of explicitly enumerated grounds of prohibited unfair discrimination, the Act also prohibits discrimination based on other grounds where that discrimination undermines human dignity, causes or perpetuates systemic disadvantage, or adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner.71 This also seems to take up the prevalent doctrine at the international level. Section 5 of the first chapter furthermore emphasizes that the Act binds not only the State but also all private persons. The degree of horizontal applicability of the equality principle has thus been reaffirmed and even broadened in regard to the promotion of equality.72 Chapter 2 of the Act contains explicit provisions on racial, gender, and disability discrimination, enumerating prohibited practices in an exemplary way.73 This chapter furthermore includes explicit provisions on the prohibition of hate speech, the prohibition of harassment, and the prohibition of dissemination and publication of information that unfairly discriminates. With respect to the proof of unfair discrimination, the Act takes up the jurisprudence of the Constitutional Court pertaining to the rebuttable presumption of unfairness in case of discrimination on one of the explicitly enumerated grounds (section 13 (2)(a)). The jurisprudence of the Court is also reflected in the factors enumerated in section 14 to determine fairness or unfairness (section 14 (3)). Chapter 4 goes on to identify the equality courts as all the magistrate’s courts and high courts for the area of the Act’s jurisdiction.74 Section 20 on the institution of proceedings in terms of or under the Act75 is interesting as it also provides for standing for “any person acting as a member of, or in the interests of, a group or class of persons” (section 20 (1)(c)) and even “any person acting in the public interest” (section 20 (1)(d)). Finally, also the South African Human Rights Commission and the Commission for Gender Equality can bring cases before the equality courts (section 20 (1)(f)). The chapter on the promotion of equality establishes that the State has a duty to promote equality and enumerates several actions the State should undertake in this respect (section 25). Any person directly or indirectly contracting with the State or exercising public power also has the responsibility to promote equality in a number of ways (section 26). Even all persons, nongovernmental organizations (NGOs), community-based organizations, and traditional institutions must promote equality in their relationships with other bodies and in their public

176

Minority Protection in Post–Apartheid South Africa

activities. Under section 28 (1), when unfair discrimination on the grounds of race, gender, or disability played a part in the commission of an offence, this must be regarded as an aggravating circumstance for purposes of sentence. By 2 August 2000, several officials of the Department of Justice had received the necessary training to familiarize themselves with the legislation, while more officials were receiving training. Special training sessions were also envisaged for magistrates, judges, and court clerks. Several regulations still needed to be gazetted before the Act could be implemented, covering issues such as the establishment of the Equality Review Committee and special Equality Courts. But by 10 December 2000, the necessary prerequisites for the implementation of the Act were fulfilled.76 It remains to be seen what the actual impact of this Act will be on the realization of (substantive) equality in post-apartheid South Africa. Affirmative Action In General. On a theoretical level, it should be highlighted that there is a subsection of the equality provision, which provides for affirmative action measures under certain conditions. The wording in both the 1993 and the 1996 Constitution77 is, however, very general and does not give clear indications about the requirements for a constitutional policy of affirmative action. Kentridge argues that the concept “designed,” used in the relevant subsection, would imply the need for a rational relationship between means and ends78—that is, between the measures to protect or advance persons previously disadvantaged by unfair discrimination on the one hand and the goal of achievement of equality and the full and equal enjoyment of all rights and freedoms on the other. It seems logical and in line with relevant international law standards that when and insofar as the requirements of the affirmative action section are complied with, the measures involved cannot be said to amount to unfair discrimination “because it is justified as a fair and rational means of achieving the object of full equality.”79 The 1996 Constitution is explicit about the overall goal of (substantive) equality, which should be served by these affirmative action measures. Whereas the relevant equality clause talks about “measures designed to protect and advance persons, or categories of persons, disadvantaged by unfair discrimination”80 and is thus geared towards redressing past discrimination and enduring disadvantages, other provisions of the Constitution underline the need to make certain institutions like the public service81 and the judiciary82 representative of the entire South African population.83 Whereas the former is clearly backward looking, the latter form of affirmative action is rather forward looking, but the two rationales are obviously interrelated. In order to assess the potential of the implementing policies for minority protection, it is important to analyze which groups are actually focused upon for the goal of redressing past discrimination and making an institution broadly representative of the South African population at large. As will be revealed by the discussion of some of the most significant initiatives in this regard, the main criteria

The Implementation and Application Phase

177

used are race, gender, and disability. Although the race factor in itself would definitely benefit the Colored and the Indian minority, while providing some protection for the White minority in view of the representation issue, it is not clear to what extent the various ethnic groups within the Black majority will benefit from this policy. Overall, there will undoubtedly be an improvement for the position of the Black population, but it is not guaranteed that the ethnic subgroups will benefit more or less proportionally. Without claiming that strict quotas are needed, the goal of making an institution representative of the entire South African population could be interpreted as requiring that the institutions be representative of the ethnic diversity. Such attention for fair representation of the distinctive population groups would probably contribute to a feeling of the groups concerned that they are fully respected and “included” in the “national project.” Furthermore, the achievement of some kind of ethnic representation in the judiciary and the public service84 would improve the linguistic ability of these institutions to perform their services in the African languages. That ability would in turn be important to empower the various population groups that have one of the African languages as first language, to guarantee them equal access to the government services concerned, and to put them in a position of substantive equality with people having Afrikaans or English as their mother tongue.85 As regards the implementation and effects of affirmative action policies, there are misgivings and discontentment among White, Colored, and Indian persons. The last two population groups formed an intermediate category during apartheid, not being white enough to enjoy all the white privileges but still in a better position than the African population. In the post-apartheid era they feel that they are not black enough, because affirmative action policies are perceived to be completely or mainly geared towards the African population groups. The nature of their claim reveals that they do not contest affirmative action policies as a matter of principle but are critical about its uneven implementation. It should be emphasized that the official policy and legislative documents on affirmative action tend to specify that these two population groups belong to the target groups of affirmative action measures. On the other hand, the White population’s situation is somewhat different. Most of their complaints seem to focus on the irrational and rigid way affirmative action policies are often implemented in South Africa and on the overemphasis on numbers/percentages, which would entail a lowering of standards in the institutions.86 There is also a certain category that focuses on the race issue involved and claims that these policies amount to a new racism, contrary to the goal of a color-blind society as envisaged by the Constitution.87 The latter reject affirmative action as a matter of principle. However, the affirmative action clause in the Constitution “patently demonstrates that the Constitution supports the view that race can be a morally relevant factor in the treatment of citizens.”88 There are dangers in adopting a color-blind approach in a society where the effects of past discrimination (based on color) are still pervasive and dominant.

178

Minority Protection in Post–Apartheid South Africa

Sachs explains the dilemma and unease involved in the use of racial discourse, while underscoring its necessity: “It is painful and paradoxical for us to be speaking in categories of race.89 Our whole objective has been to look at human beings as human beings, and not as members of this group or that. Yet if we are to face up honestly and realistically to the problems of the country, whether in the economic or any other sphere, we cannot ignore the extent to which the racial factor opens the door for some and closes it for others.”90 Before analyzing and evaluating the implementation of affirmative action in certain sectors, some remarks should be made about the use of quotas in affirmative action policies. In general, quotas are looked upon with suspicion in South Africa as they are reminiscent of some of the group rights and ascriptive group membership under apartheid.91 Nevertheless, it is accepted that there might initially be a need to use quotas to counter the most egregious effects of apartheid but only in a limited and neatly tailored way so that it does not imply a lowering of standards.92 In the end, it is the actual implementation of the quotas and, more specifically the degree of flexibility as demonstrated by the extent to which the concrete circumstances are taken into account, that will determine whether affirmative action effectively reaches the goal of substantive equality and furthers the accommodation of the country’s racial and ethnic population diversity. The Representativity of the Judiciary. The representativity of the judiciary is indeed important in view of the legitimacy crisis of the courts and the need for justice to be seen to be done. This legitimacy crisis is mainly related to the fact that the judges used to enforce apartheid legislation in gross violation of fundamental human rights and are perceived to be biased against people of color.93 There is a widespread perception that many judicial officers reveal in their attitudes and conduct a refusal to change and further the goals of the new, democratic South Africa.94 Although this matter goes beyond a mere representativeness issue, an alteration in the composition of the courts will probably also have an impact on the required change of fundamental attitudes among judges. In its strategic plan for the transformation of justice, Justice Vision 2000, the Ministry of Justice acknowledges the urgent need to make the justice system more representative of the entire South African community.95 Since 1994 representativeness of the bench is markedly improved,96 while the Department of Justice also introduced or is in the process of introducing other but related policies that tend to benefit the overall picture of representativeness of the justice system. There is in this regard not only the establishment of a lay assessor system, entailing that in certain cases two lay assessors are to aid the magistrate,97 but the Department is also developing a policy for alternative dispute resolution and community courts (in cooperation with the South African Law Commission (SALC)).98 All these initiatives are meant to increase community participation99 and to bring government closer to the people. They would, in this sense, tend to further the accommodation of the country’s population diversity in the domain of justice. Obviously, the actual implementation and results will be decisive in this respect and cannot be assessed yet at this stage.

The Implementation and Application Phase

179

Affirmative Action in the Public Service. Apartheid caused severe imbalances in the composition of the public service in that predominantly white Afrikaners were hired as a matter of preference. Consequently, the need for that institution’s transformation is strongly and widely felt in the post-apartheid era. Transformation in terms of the 1993 Constitution was severely constrained due to a compromise provision in the transitional provisions that protected the vested interests of the officials employed at the time the Constitution came into effect.100 The 1993 Constitution also allowed efforts to make the public service more representative of the South African population,101 but the actual implementation of its affirmative action policy only effectively took off in 1998, in terms of the policy outlined on the basis of the 1996 Constitution. In terms of the 1993 Constitution, two additional chapters to the Public Service Staff Code were created.102 Both deal with the representativity issue and related steps to include members of previously disadvantaged communities.103 The groups targeted as being “disadvantaged by unfair discrimination” are broadly defined and include the various ethnic groups of the African population, and also religious and linguistic groups.104 Affirmative action thus conceptualized would enhance the accommodation of the country’s population diversity and would amount to an important protection and promotion of the distinctive minorities involved. However, the Department of Public Service and Administration issued in 1997 a notice with a Conceptual Framework for Affirmative Action and the Management of Diversity in the Public Service in which it heavily criticized the previous affirmative action policy. It argued that policy was too much tied to numbers, thus falling prey to a popular mechanistic approach, while being de facto nontransformative and even a tool of assimilation. There is, consequently, a call for a more holistic approach to affirmative action and more flexible rules that take the specific and particular disadvantages of the various population groups involved into account. There should be a focus on the relative disadvantage, equal opportunities, group redress/group consciousness, and the overall goal of substantive equality as the foundation of affirmative action.105 The subsequent White Paper on Affirmative Action in the Public Service confirms and further elaborates upon the principles announced in the Notice of 1997.106 The White Paper only focuses on the factors of race, gender, and disability. In view of the White Paper’s emphasis on the need to obtain a culture in the public service which values diversity107 and takes into account the relative disadvantaged status of groups;108 the factors ethnicity and religion should also be included.109 The White Paper sets out “the mandatory requirements and steps that national departments and provincial administration should take to develop and implement their affirmative action programs.”110 Throughout the document, there is a strong emphasis on equality as the goal and justification of (the) affirmative action policy. It should be pointed out that there is still quite a strong emphasis on numerical and time targets.111 However, the strong focus on relative disadvantage and the need to further substantive equality will probably guard against too rigid a use of numerical goals although these might, indeed, be needed in the short term.

180

Minority Protection in Post–Apartheid South Africa

The targets found in the White Paper on Transformation in the Public Service (November 1995) are only in terms of race, gender, and disability. The way the race quotas are broken down among the ethnic components is thus not prescribed and will be determined by the concrete, specific circumstances of the department concerned and its needs as well as the relative disadvantage of the various population groups. In view of the frequently heard criticism that affirmation action entails a lowering of standards, it should be emphasized that this is not necessarily the case. The Constitution does underline that employment practices should inter alia be based on ability112 and the White Paper on Affirmative Action in the Public Service names “productivity and improved service delivery” as one of the key principles of the policy.113 As the affirmative action policy was only approved by the cabinet in March 1998 and launched in April of that year, the actual effect of the implementation of this policy on the accommodation of the country’s population diversity will only be visible after a couple of years. If the principles contained in the White Paper are followed, the impact should be positive since it will increase the feeling of inclusiveness and will further empower the population groups concerned. The Employment Equity Act. Although the implementation of affirmative action under the “old” policy for the public service engendered some criticism,114 the Employment Equity Act115 is much more contentious. It caused heated debates about the appropriateness of the use of racial classifications and allegations of reintroduction of racial classifications as under apartheid. The categories focused upon for the affirmative action measures are again based on race, gender, and disability but without explicit further reference to ethnicity, language, or religion.116 The typical debates related to affirmative action for victims of past discrimination and the use of the dreaded classifications (need to redress the inequalities inherited from the past versus the danger of reinforcing racial differences and group thinking) reigned supreme during the parliamentary discussions.117 The Employment Equity Act does not aim only to ban unfair discrimination in the employment sector118 it also obliges employers of fifty or more workers to take steps towards employment equity.119 It should be pointed out, however, that several parties voted against it,120 underscoring its contentious nature, and the Freedom Front went as far as threatening violent resistance to the Act.121 The Act acknowledges explicitly the need both to prevent a lowering of standards122 and to avoid (strict) quotas123 but at the same time attempts to base capacity on more than formal qualifications.124 The provision that “nothing in this section (dealing with affirmative action measures) requires a designated employer to take any decision concerning an employment policy or practice that would establish an absolute barrier to the prospective or continued employment or advancement of people who are not from designated groups,”125 is apparently targeted at calming the fears of the white population. It seems that the ANC government is committed to a swift and tightly controlled implementation of the Act since it was announced that the first employment equity plans should be submitted by December 1998 and that a monitoring

The Implementation and Application Phase

181

and an enforcement system should be fully developed and installed by then.126 Nevertheless, the results of the analysis of the first reports only came through on 2 August 2000 and were rather disappointing.127 Indeed, at least one thousand seven hundred companies had not reported, while 30 percent of the ones who did were late, in the wrong format, or otherwise unusable. Labor Minister Mdladlana was also unhappy with the contents of the reports received in that no significant progress had been made since a baseline survey two years earlier. The Minister did point out that there were some good reports, demonstrating that employment equity can work, and he furthermore indicated several follow-up activities like the publication of several codes of good conduct. In view of the widespread criticism and unease among the white population, the Act’s impact on the accommodation of population diversity and minority protection128 will depend on its actual implementation over the coming years.129 Conclusion. Post-apartheid South Africa has chosen to adopt a substantive conception of equality, but it is still searching for the exact balance in achieving it without alienating the population groups that were (more or less) privileged during apartheid.130 The developments and evolution of both the jurisprudence of the Constitutional Court on the nondiscrimination clause and the various affirmative action policies attest to this. It remains to be seen how the guiding principle of substantive equality will be applied to issues closely or directly related to minority protection, like the implementation of sections 31, 15 (3), 29 (2), 39 (2) and 211 (3) of the 1996 Constitution. Substantive equality inter alia requires that all relevant circumstances be taken into account in an ad hoc balancing process, which would leave some scope for the recognition of different ways of life. The right to identity of the groups concerned would then be protected, without creating or entrenching privileges. The Constitutional Court has explicitly recognized the need to accommodate diversity in the National Coalition for Gay and Lesbian Equality and Another v The Minister of Justice and Others as it expressed agreement with Sachs J’s concurrent opinion, which underscores inter alia that: “Equality means equal concern for and respect across difference. It does not presuppose the elimination or suppression of difference. Respect for human rights requires the affirmation of self, not the denial of self. Equality therefore does not imply a leveling or homogenization of behaviors but an acknowledgement and acceptance of difference.”131

THE ACCOMMODATION OF LINGUISTIC DIVERSITY Introduction The review of the relevant history has revealed that the language issue and the official status accorded to languages in South Africa has been a highly sensitive issue from the beginning of colonial times. Not only was there a fierce struggle between Afrikaans and English (mainly before 1910) but the African languages were disadvantaged, underdeveloped, and undervalued—especially during

182

Minority Protection in Post–Apartheid South Africa

apartheid. This led to a feeling of inferiority on the part of the speakers of these languages. Several constitutional provisions deal with languages and their status. They constitute an attempt to end linguistic discrimination, while also providing for “affirmative action” for the previously disadvantaged indigenous languages.132 These constitutional provisions seem to demonstrate a positive attitude towards and even a preference for multi-lingualism, which is, however, not confirmed in actual practice. Whereas the subsections on language rights of the section on arrested, detained, and accused persons133 can be identified as individual human rights, sections 30, 31 and 29 (2) of the 1996 Constitution amount to minority rights provisions because of their terminology and/or intended focus, as revealed by the constitutional negotiations. Section 6 in the chapter on Founding Provisions of the 1996 Constitution deals extensively with languages and their status and usage in the public domain. This section is not formulated in terms of rights of the speakers but is focused on the languages themselves. Nevertheless, the overall aim of promotion of multi-lingualism, which is reminiscent of the European Charter on Regional or Minority Languages, and the fact that most linguistic groups in South Africa can be considered minorities, brings section 6 close to the domain of minority rights as well. The implementation of section 6, 1996 Constitution is focused upon in this part as the other sections are analyzed elsewhere. Since language is an important identity feature for people,134 it can be argued that “effective language planning, which considers and accounts for the sentiments of the people on the ground, is essential for successful government in a multi-lingual country such as South Africa.”135 The further development of linguistic rights and the actual status in the public domain of the various official and nonofficial languages spoken in South Africa will obviously be an important factor for assessing the extent to which the right to identity of the various linguistic communities is realized. In this respect, it is important to realize that the mere recognition of eleven official languages, including nine indigenous languages, does not guarantee that these languages will all be used more or less equally or equitably in the public domain.136 In the same vein, the formulation of the other subsections, like the one on the need for the state to “take practical and positive measures to elevate the status and advance the use of these languages,”137 is sufficiently vague and general to give the government authorities a rather extensive discretion. Further Analysis of Section 6 of the 1996 Constitution It was already underscored that the 1996 Constitution no longer prescribes that all the official languages should be treated equally. Section 6 merely requires parity of esteem and equitable treatment of these languages. This change in terminology emphasizes that there is no need to have formal equal treatment of the official languages but that the concrete, specific circumstances should be taken into account,138 which is confirmed by section 6 (2), 1996 Constitution.

The Implementation and Application Phase

183

Currently, several specific language policies are being outlined and developed for certain spheres of the public domain,139 and it will be interesting to see whether there will be constitutional complaints on the grounds that certain official languages have not received equitable treatment and how the Constitutional Court will react. The constitutional framework is promising for the accommodation of South Africa’s linguistic diversity,140 because it provides a basis for the enhanced empowerment141 and political participation142 as well as equal access to services143 for the speakers of the eleven official languages. Furthermore, the importance of promoting and ensuring the respect of the other languages spoken in the country is acknowledged.144 At the same time, the improved constitutional recognition of several of the indigenous languages contributes to the achievement of the principle of substantive equality, which is vital and central to the “new” South Africa. The areas of special relevance in this respect are language use for government purposes (in government publications, legislation, and in Parliament), language use in the departments and public service more generally, and language use in the courts and in educational institutions (medium of instruction). There are several initiatives in these areas of public life, but in general there is a huge gap between theory and practice. Although the Constitution recognizes eleven official languages, the actual content of such an official language policy is only determined by specific regulation of language use in interactions between the state and individuals.145 The Constitution does include a further subsection on language use for “purposes of government,” indicating some factors that should be taken into account when devising such policy at national, provincial, and local level. “Purposes of government” include the determination of languages of record, journals, proceedings of Parliament, bills, laws,146 and notices of general public importance.147 Overall, one can distinguish two broad aspects of government activity regarding language use for “purposes of government” that would justify a different approach. They are legislation and administration.148 At the national and provincial level, there is the constraint that the authorities cannot use only one official language for purposes of government. In addition, considerations of “usage, practicability, expense, regional circumstances and the balance of the needs and preferences of the population” must also be taken into account. The obligation to go beyond “only one” would be an indication of the perceived need to counter the move towards English-only practices, already referred to several times. These considerations confirm the need to take the specific circumstances into account when making decisions in this field. Practicability and expense in combination with the last two factors, “regional circumstances” and “the balance of the needs and preferences of the population” give a considerable margin of appreciation to government, whereas usage is presumably referring to the objective factor of demographic concentrations in particular regions of speakers of the official languages.149 As Currie points out, the usage factor “would clearly justify

184

Minority Protection in Post–Apartheid South Africa

the use by a provincial government of only the principal languages used in that province for purposes of legislation and administration. It would also justify the national government formulating a policy of using only the principal languages of a region for the purposes of administrative services in that region.”150 These considerations relate to the use of a sliding-scale approach and imply a recognition of the practical constraint in a multi-lingual country that it “will all too often be practically and financially impossible to provide every type of government service in each of the official languages everywhere.”151 The sliding-scale approach would imply that the higher the degree of concentration of speakers of a language in a particular area and the more important a government service for the population, the more pronounced the state/provincial obligation to provide services in that language would be. An analogous approach would be valid for the municipal level, although the only factors explicitly mentioned as relevant for the determination of the policy for language use for purposes of government at that level are “usage and preferences of their residents.”152 It should also be noted that the municipalities are allowed to adopt only one official language for purposes of government.153 The principle that the population governed by the rules should be able to understand them implies that “[l]egislation at national level should . . . in principle be published in all the principal languages of the state. Similarly, legislation at [the] provincial level should be published in the principal languages spoken in the province.”154 Along the same lines, it can be postulated that members of Parliament should be able to use the national official languages in parliamentary debate (with the help of interpreters) and members of provincial legislatures should be able to do the same in the provincial official languages.155 In contrast to legislation, “the activities of administration affect only limited sections of the population at different times. This allows greater flexibility in the formulation of the language policy appropriate to a particular region, section of the population or administrative function.”156 The actual implementation of a language policy for public administration should also work with a sliding-scale approach, determined by factors such as demographic concentrations and relative importance of the state services involved.157 The national administration would presumably be obliged to implement measures that enable it to communicate in all official languages, and the provincial administration in all the provincial official languages. Such measures “would obviously entail employment of officials conversant with the official languages (concerned) and the provision of translation services.”158 Whereas the previous considerations considering language use for purposes of legislation and administration only apply to the eleven official languages, this is not the case for the constitutional obligation on the state to advance the use and elevate the status of the indigenous languages.159 Whereas it is perfectly reasonable not to oblige a state to perform in all the languages spoken in the state, it is not clear how far the state obligations towards affirmative action for the indigenous languages go. Although expense and practicability are also valid considerations

The Implementation and Application Phase

185

here, there should be a serious attempt to use these historically diminished languages in legislation and administration.160 The Pan South African Language Board (PANSALB) Before evaluating the actual implementation and application of the constitutional principles, it seems relevant and important to give some more information on PANSALB to assess the degree of institutional support that is provided for the language policy as outlined in the Constitution and elaborated upon in legislation. The Board’s tasks can be described as advising government, making proposals on language policy, and investigating language rights complaints. The powers and functions of the Board include making “recommendations with regard to any proposed or existing legislation, practice and policy dealing directly or indirectly with language matters at any level of government, and with regard to any proposed amendments to or the repeal or replacement of such legislation, practice and policy”; and making “recommendations to organs of state at all levels of government where it considers such action advisable for the adoption of measures aimed at the promotion of multi-lingualism within the framework of the Constitution.”161 However, interviews with several members of the Board revealed that they felt they were not consulted enough by the departments in this regard and even if they were, their recommendations were not taken into account.162 De facto the Board thus encounters difficulties in fulfilling its function of providing support for the language principles of the Constitution. In February 1998 PANSALB published its position on the Promotion of Multilingualism in South Africa. Its task is to “encourage the use of the official languages as well as all other languages used in South Africa, in a wider range of contexts and for an increasing range of purposes.”163 It specified that “[t]here is no doubt that the paradigm which needs to be followed in South Africa is one which includes both the functional approach to languages, which is inseparable from the view of language as a right and the view that all languages are resources.”164 Functional multi-lingualism would then mean that government needs to identify the appropriate medium of communication, depending on who the audience happens to be, which is related to the fact that people use different languages in different parts of the country (the respective relative territorial concentrations).165 Positive developments that need to be highlighted are the establishment by the end of the year 2000 of Provincial Language Committees in eight of the nine provinces.166 These Committees are to advise the board on any language matter in or affecting the province concerned or any issue related to the languages used in the province concerned.167 The Board has also established, in October 1999, the Khoi and San National Language Body as part of a process to create an environment conducive to the Khoi and San reclaiming their linguistic dignity and identity.168 This language body is responsible for promoting, developing, and extending the use of Khoi and San languages in the Republic of South Africa.

186

Minority Protection in Post–Apartheid South Africa

In addition, the body will advise PANSALB on the languages it represents and actively assist the Board in its endeavours to promote multi-lingualism.169 The Board has indicated that it intended to establish other National Language Bodies and enhance their functionality.170 Consequently, there appears to be a strong commitment to strengthen the institutional support for multi-lingualism. Most of the existing structures are very young and still have to demonstrate their actual impact on the promotion of multi-lingualism in South Africa. One of the more specific and rather important tasks of the Board is to “investigate on its own initiative or on receipt of a written complaint, any alleged violation of a language right, language policy or language practice.”171 In view of the fact that the Board itself cannot institute an action, it is important that it “may provide any person or body of persons with financial and other assistance”172 to further pursue this claim in the courts. Contrary to expectations, initially the Board was not burdened by a host of complaints by Afrikaners. However, in March 2001 PANSALB indicated that most of the language complaints (160 until that date) it receives are from Afrikaners and not from speakers of the nine African languages recently accorded official status.173 Interesting complaints requiring consideration174 include the first complaint, which was formulated by the Venda, who represent a very small linguistic group, regarding the language policy of the South African Broadcasting Cooperation (SABC). Another complaint came from the Committee of Marginalised Languages representing the Tsonga, Venda, Ndebele, and Siswati. Following complaints by the Mine Workers Union, PANSALB deemed the Public Works Department’s decision to make exclusive use of English in all its communication unconstitutional175 and also stated that Eskom’s (the South African electricity utility) decision to send only unilingual account statements and forms to the public amounted to a violation of the constitutional language rights of South African consumers. Furthermore, Telkom’s (the South African telecommunications utility) policy decision to have English as the only official business language within the company was said to disregard completely the language preferences of its employees and was thus contrary to the policy of multi-lingualism contained in the 1996 Constitution.176 These rulings are meant to have important implications for all public entities as they seem to entail that such entities have to take the language preferences of its clients into account (to a certain degree at least).177 However, it remains to be seen to what extent the rulings actually influence the practice. It should also be mentioned that the degree of disfunctioning of PANSALB is compounded by a lack of financial and institutional support by the Department of Arts and Culture and the problems regarding the internal functioning of the Board.178 The fact that PANSALB is funded by DACST and is accountable to the Minister is a real problem that jeopardizes PANSALB’s independent decision-making capacity.179 It remains to be seen how the Board will, in these circumstances, be able to fulfil its obligation to “actively promote the development of previously marginalised languages by (i) developing, administering and

The Implementation and Application Phase

187

monitoring access, information and implementation programs.”180 Arguably PANSALB has, due to lack of governmental and departmental support, not been in a position to contribute a great deal to the achievement of a multi-lingual policy in post-apartheid South Africa. Whether this will change for better or for worse will be revealed by future developments.181 The perception on the basis of PANSALB’s activities and difficulties is that the practice regarding language issues in South Africa is rather disappointing.182 As already mentioned several times, both at the national and the provincial government level, there is a clear move towards an English-only policy.183 This development constitutes a negation of the multi-lingual policy envisaged by the Constitution.184 Of course, there are also the real constraints of practicability and resources as well as a legitimate concern for nation building and thus the need for a common language/lingua franca to communicate across linguistic communities. Overall, the development of an “appropriate” language policy will consist of a balancing process, which searches for the appropriate balance between accommodation of linguistic diversity/multi-lingualism on the one hand and concerns of national unity and limited resources on the other.185 Although certain national departments have been working on a concrete language policy, the finalization is very slow, which casts further doubts on the prospects of the emergence of an actual multi-lingual practice in the public sphere.186 Practice: Language Use in the Public Sphere Several shifts in policy in the post-apartheid era, or suggestions to that effect, have caused a lot of upheaval, mainly among Afrikaners. One of the highly sensitive issues, related to the debate of single-medium institutions/single-medium Afrikaans universities, has been the closure and/or scaling down of Afrikaans departments at several (public) universities.187 These developments are perceived as a major threat to the continued existence of Afrikaans by several Afrikaners and induced the Freedom Front to call on the government to take active steps to ensure the survival of Afrikaans at universities.188 Furthermore, several Afrikaner groupings are formed to focus on the protection of Afrikaans and its status especially as related to higher education. The Group of 63 is a case in point.189 The language policy proposals in the Department of Defense suggested that English would be the “thread language” or the lingua franca for general communication, command, control, and coordination as well as training, while the other official languages would be used as “link languages” where the situation warranted or demanded it. There would also be a strong policy of nondiscrimination on the basis of language.190 Although it looks like a rather balanced policy, it can be argued that a more flexible approach instead of a single homogeneous position would be preferable by proceeding, for example, from the language of the region in which a unit, command, or headquarters is situated. The language policy in Parliament has also been discussed and was the center of a very tense

188

Minority Protection in Post–Apartheid South Africa

discussion.191 This matter has not been finally settled, but at some point it was suggested that Hansard, the official record of parliamentary proceedings, would be published in English and Afrikaans and that two additional languages (one Nguni and one Sotho) would be added in the short term.192 A sociolinguistic survey dated September 2000 conducted by Markdata on behalf of PANSALB is also very instructive.193 Regarding language use in public and institutional situations it seems one can identify situations that are rather problematic in that high or fairly high proportions of people are not accommodated in their home languages and high or fairly high proportions of people not accommodated feel negatively about that situation. It concerns more specifically inter alia language of tuition, language of signs, notices and adverts, language use in work-seeking activity, and news broadcasts.194 It is also obvious that the linguistic groups of which high proportions perceive that they are not served in their own language in offices and other public service contact points include not only the IsiNdebele and Xitsonga speakers, but also the Setswana and Sesotho speakers.195 Whereas it is pointed out that language use in the workplace is of critical importance, the data reveal that all languages except Afrikaans are displaced to a degree in the workplace.196 It was highlighted that the low level of selection of English language tuition is surprising in the light of the almost universal practice of using English as the medium of instruction in schools.197 The data regarding multi-lingualism in South Africa reveal that South Africans need a more inclusive language policy than one based on the assumption that one language has sufficient reach to be an adequate medium of communication across the country. The report concludes by emphasizing that: substantial proportions of people have to accept less than adequate communication with their fellow South Africans and have to make difficult adjustments in formal situations and formal interaction. . . . Decision makers in the public and private sectors have a point that the practical problems of accommodating eleven languages are such that current budgets cannot be expected to provide for adequate expenditure on language development, multilingual training and the development of translation services. There is a danger in a situation in which resources will always be limited that the challenges of language development will always be deferred. This survey shows, however, that the very communication with the people, that decision-makers see as one of their major obligations, is understood by less than half of the population they would like to reach. If nothing else this should be a reason for a greater sense of urgency in respect of language development and multilingualism.198

Finally, it is important to mention a positive development that could be very important for the achievement of a truly multi-lingual policy in South Africa, namely the Language Facilitation Program at the University of the (Orange) Free State. This program, set up by a public university and mainly sponsored by the Flemish Government, trains interpreters for the provincial legislatures, national Parliament, and the Truth and Reconciliation Commission. The program is being extended by the introduction of a mobile interpreter unit for local councils and

The Implementation and Application Phase

189

provincial government departments.199 It is interesting to note that both the Gauteng and the Western Cape departments of culture and language are seriously contemplating the creation of their own language facilitation program.200 It is too early to evaluate whether they will be successful, whether and to what extent the government is going to contribute to these programs, and whether they will be extended to (cover) the entire territory. The Department of Arts, Culture, Science and Technology The Language Directorate at the Department of Arts, Culture, Science and Technology reacts with mixed feelings to the distinctive language policy proposals of the departments and Parliament. In general the lack of intergovernmental cooperation is problematic and the subtext of getting rid of Afrikaans is also perceived as a negative aspect. Overall, there is no objection to the language policy proposals although they should be more flexible and more phased regarding the reduction of Afrikaans. In any event, it seems problematic that the actual finalization of these language policy proposals drags on for years and most of them are still not finalized in mid-2001. The importance of language awareness campaigns to counter the feelings of inferiority by speakers of the indigenous languages and to enhance positive attitudes regarding multi-lingualism should not be underestimated. A major campaign was launched at Parliament in February 1998201 and is being followed by smaller initiatives. Other projects in progress, which are important contributions to actual multi-lingualism, include the development of language dictionaries and a language code of conduct for the public service and the establishment of a Language Development Section in the Language Directorate of DACST.202 However, the Language Plan for South Africa, which was further adapted in view of the discussions at a national workshop 26 February 1998, still has not received approval by the Minister and cannot be implemented. The plan is envisaged as being very important for the effectiveness of multilingualism in South Africa203 and has as central principles language equity and widespread language facilitation services, which is linked to equal access to all spheres of South African society for all South Africans, especially to the civil service. The plan is balanced in that it takes the practical and other resource constraints sufficiently into account by advocating functional multi-lingualism. The policy would entail functional differentiation, implying that not all eleven official languages need to be used for all contexts and purposes, but different languages may be more appropriate for different functions.204 At a Cabinet Committee meeting 13 September 2000, it was decided that the costs of the proposed rotation of languages in terms of four categories of languages should be estimated for three or four national government departments and that a survey should be done in all national departments as well as in the provinces to determine the status quo in regard to language infrastructure. The report on the survey of language infrastructure was released in April 2001205 and

190

Minority Protection in Post–Apartheid South Africa

indicated that more than a third of the national departments have language units or sections that deal with language matters, while nineteen national departments do not have language units that comply with the requirements of the Language Policy and Plan. Seven of the nine provinces already have language units or sections that comply with the requirements of the Language Plan. At the policy level, it is highlighted that only five national departments206 have actually adopted and implemented official departmental language policies. Only four provinces have officially adopted language policies, while three others have drafted language policies.207 The costing exercise will be out-sourced, and it is not clear at all when the exercise will be done and when its results will be transformed into policy decisions. The eventual approval of a Language Plan for South Africa and its actual implementation and the development of the necessary language infrastructure will thus be for the rather distant future.208 Current actual practice regarding language use for purposes of government and other related public functions, like the public broadcaster, are a far cry from the promising constitutional principles of the 1996 Constitution. There is a rather uniform complaint about the dominant status of English as lingua franca and the concomitant negation of meaningful multi-lingualism, as demanded by the Constitution. Although certain public institutions and national departments are trying to develop language policies that contribute to the right of identity of the various linguistic groups in South Africa while taking practical constraints and considerations of nation building into account, there seems a de facto denial of several constitutional principles concerning the status of languages and multi-lingualism. Afrikaners do have to give up their privileged apartheid position and share the same amount of resources with ten other languages so that all eleven receive equitable treatment. Inevitably, this change in official language policy implies a reduction of the status of Afrikaans, which is acceptable and justified as long as the measures concerned are guided by the principle of substantive equality.209 There is of course nothing wrong with private initiatives on the part of (concerned) Afrikaners to promote Afrikaans, like the idea of founding an umbrella Afrikaner organization of a cultural/linguistic nature, focusing on inclusiveness and nonracialism.210 The further interpretation and implementation of section 6 of the 1996 Constitution will determine the actual degree of accommodation of the various linguistic minorities and their right to identity in South Africa. Relevant factors in this regard are what the eventual language policies discussed above will be like, what will happen with the National Language Plan for South Africa, and even more to what extent they will be effectively implemented. Functional multi-lingualism, the right to identity for minorities, a sliding-scale approach, and substantive equality should be the guiding principles for the further development and implementation of the language regulations in South Africa so as to achieve an optimal accommodation of the country’s linguistic diversity. The principles appear to be accepted, but they still need to be fully implemented and realized.

The Implementation and Application Phase

191

THE RIGHT TO EDUCATION Introduction Education is overall a very sensitive matter in post-apartheid South Africa, as revealed by numerous teacher strikes and instances of student unrest211 because of the lack of financial aid for most students from previously disadvantaged backgrounds, the lack of (“racial”) transformation at schools and tertiary institutions,212 the decisions regarding the choice of medium especially at tertiary institutions, and the overall restructuring of the curriculum.213 It is impossible to give a detailed account of all the distinctive developments and policies. Consequently, the focus will be on the issues that are most closely related to the accommodation of population diversity and the right to identity of the various population groups in South Africa. This will entail some remarks on equal access to educational institutions, on curriculum related issues—mainly involving language and religion—and finally on the regulation of private educational institutions.214 Equal Access to Education The theme of equal access to and integration of the educational institutions, which should be brought on substantively equal levels, is very important and should be seen against the background of racially structured education during apartheid, which resulted in separate and unequal education for the distinctive population groups. Consequently, a move to integrate these institutions, bring their infrastructure and resources on substantively equal levels,215 and ensure equal access to them is vital for the accommodation of South Africa’s population diversity.216 Although these developments are often seen in racial terms, they do benefit all ethnic (minority) groups within the black population group and the colored and Indian minority. The South African Schools Act (No 84 of 1996), which governs education at the school level, ensures nondiscriminatory access, and explicitly prohibits any (language) test as a condition for admission to avoid indirect discrimination.217 The second paragraph of the preamble gives important and relevant indications of the overall goals of the education provided in schools, such as to “combat racism and sexism and all other forms of unfair discrimination and intolerance . . . protect and advance our diverse cultures and languages.” Minister Asmal is furthermore adamant about the need to change the practices of certain schools that deny scholars access on religious, cultural, and language grounds.218 He emphasized the problem that schools had refused students because of their dreadlocks whereas this is required by their religion, the Rastafarian religion.219 He also convinced the provincial education Members of the Executive Committee (MECs) that particular care had to be taken to recognize cultural and religious diversity in school admissions.220 Regarding higher or tertiary education, it is important to facilitate access for students from previously disadvantaged communities by adopting a flexible and

192

Minority Protection in Post–Apartheid South Africa

progressive method to establish capacity for higher education.221 The Report of the Commission on Higher Education calls for “improved student selection instruments”222 and the Higher Education Act (No 101 of 1997) refers in its preamble to the “need to redress past discrimination and ensure representativity and equal access.”223 The Act establishes a Council on Higher Education,224 which is inter alia charged with the promotion of student access to higher education institutions.225 The Council submitted its report, “Towards a New Higher Education Landscape,”226 on 30 June 2000. The preface of this lengthy report underscores that the goals and purposes advanced in the White Paper—such as equity and redress—has guided the Task Team of the council. One of the goals was the increase in access for disadvantaged social groups while equity, including equity of opportunity, was one of the reconfiguration proposals of the Task Team. Indeed, much remains to be done to take South Africans beyond the distinctions between historically disadvantaged and historically advantaged. On the basis of this report,227 the National Plan on Higher Education was developed by the national department of education and launched by Minister Asmal in March 2001. Section 3 of the National Plan on Higher Education is focused on Achieving Equity in the South African Higher Education System and thus of special relevance for the focus of this work. It formulates as strategic objectives: “To ensure that the student and staff profiles progressively reflect the demographic realities of South African society” and “To ensure that the race and gender profiles of graduates reflect the profile of student enrollments,” while the following priorities are indicated: “To increase the participation, success and graduation rates of black students in general and African and Colored students in particular” and “To increase the representation of blacks and women in academic and administrative positions, especially at senior levels.”228 The goal of equity in higher education is clearly linked to “the imperative to address the inequalities of the past and to eradicate all forms of unfair discrimination in relation to access and equality of opportunity within higher education for historically and socially disadvantaged groups.”229 In this respect, reference should also be made to the Recognition of Prior Learning, which is meant to enable the identification of existing knowledge and skills of relevance to the eligibility of adults for study (or exemption from courses) so as to increase the participation of black students in higher education.230 There are, however, several hurdles pertaining to its actual implementation.231 The Plan also points out that “changes in the demographic profile of the student body of the higher education system have generally not been accompanied by a similar change in the staff profile so that black people . . . remain underrepresented in academic and professional positions, especially at senior levels.”232 Furthermore, it highlights that: “[t]he Ministry is reluctant to introduce equity quotas as it recognises the difficulties involved in setting realistic targets, given the state of the school system and the low numbers of students matriculating with the necessary qualifications and competencies to pursue higher education. However, if institutions do not develop their own race . . . targets and put in

The Implementation and Application Phase

193

place clear strategies for achieving them, the Ministry will have no hesitation in introducing quotas in the future.”233 At the launch of the National Plan, Minister Asmal indeed explicitly emphasized that government could be forced to introduce a quota system if transformation in higher education, regarding student body and staff composition, was not realized within the next five to seven years.234 It also correctly emphasizes that increased access would be meaningless if students do not succeed in their studies. More equity in access should go hand in hand with increased equity in success. “Although this equity in access is the primary responsibility of institutions, the Ministry is committed to ensuring that the underlying factors that hinder success are addressed. The Ministry’s support will focus primarily on three areas, namely, the funding of academic development programs, improving the quality of schooling . . . and student financial aid.”235 Regarding the third area, the Ministry sets out to review the National Student Financial Aid Scheme drastically and completely.236 Whereas the Ministry recognizes that changing the staff profile in higher education is fraught with difficulties, it also emphasizes that employment equity remains an important national policy goal.237 Subsequently, several strategies are outlined to increase access and success of black students in higher education and to improve staff equity. They are complemented by a detailed implementation strategy.238 It should be mentioned that all universities in South Africa are to a considerable extent public because they are governed by acts of Parliament239 and their policies should also be taken into account.240 The Higher Education Act effectively allows the councils of higher education institutions to determine their own admission policy subject to the Act,241 which includes the obligation to “provide appropriate measures for the redress of past inequalities and may not unfairly discriminate in any way.”242 The Development of an Inclusive Curriculum: Generally and Regarding Religion In view of the goal of integrated education, there has been a strong call to make the curriculum inclusive,243 so as to reflect the histories and values of the distinctive population groups, which would not only enable the learners to cross cultural boundaries with understanding but would also affirm the respective identities.244 The multicultural classrooms that are emerging also call for a different approach to educational methods, not only linguistically but also more generally.245 The Report of the National Commission on Higher Education explicitly confirms this as it emphasizes that “[h]igher education institutions will be required, not only to tolerate diversity but to take meaningful measures to accommodate diversity in their social, educational, and administrative arrangements on campus.”246 A new curriculum, Curriculum 2005, was devised for schools, implying a shift to outcome-based education and the identification of eight learning

194

Minority Protection in Post–Apartheid South Africa

areas for which learning programs are developed.247 These learning programs are intended to be more inclusive and will eventually entail changes in teacher training to familiarize them with multi-lingual and multicultural classrooms.248 Curriculum 2005 promotes values of antiracism, antisexism, democracy, and a culture based on human rights. Furthermore, the articulations of the nation within the Curriculum emphasizes the development of the values of tolerance and respect for diversity and individual human rights and dignity.249 Presently there are several ongoing problems related to the desegregation of the schooling system. This is not only because many (previously White-only and especially model C) schools are not dealing with desegregation adequately and maintain their (White) structure, entailing the alienation of all pupils in these institutions,250 but also because teachers are currently not appropriately trained. It seems, however, that there are changes on the ground251 and also some successful initiatives at the private level.252 Generally, genuine attempts are made to develop the new education system in a way that furthers substantive equality among the learners from the various population groups and that accommodates that diversity in an appropriate way. In view of the pervasive and ongoing impact of apartheid, it will inevitably take a long time before actual results will be visible. Two aspects of the curriculum are very sensitive, which is probably related to the fact that they concern fundamental identity features, namely religion and language in education. Religious instruction253 is mainly an issue at school level that is tackled but not finalized as yet through the further development of the learning programs of Curriculum 2005. The question is whether religion should be part of the public curriculum and if so under what form (separate religious courses or one comparative course).254 Initially, religion formed part of the learning area “life orientation” in Curriculum 2005 but by the end of March 1997 the responsible committee scrapped it entirely, leaving it to the respective religious communities to provide religious instruction outside the school, or through the decision of the majority of the parents of a certain public school.255 There was, however, a strong reaction among the population to this development256 and in September 1998 the Minister of Education appointed a committee of five members to draft a policy framework on religion in education.257 The Report of this committee was officially released on 20 January 1999, and needs to go through several phases of refinement and public comment before it will become law. The Report accommodates most, if not all, visions about religion in education and religious education by outlining a choice model for the individual schools in the area of general education.258 It is important for the accommodation of South Africa’s religious population diversity that the choice, which any particular school makes, is also subject to the condition that if it chooses extra programs in flexible time on specific religions, it must ensure that all learners are accommodated in the range of separate programs.259 One of the Directive Principles of Religious Education Policy reveals the Report’s focus on both nation building and the protection of the distinctive identities of the various religious groups and is formulated as follows: “The state’s primary responsibility

The Implementation and Application Phase

195

is the affirming of religious identity in the context of diversity, as well as education based on the shared ideals, experiences, practices and moral values of the religious traditions in our society.”260 By mid-2001, a follow-up policy on the Report has not been formulated and does not seem to be in the cards for the near future. Although the way the Report came about and its content seem very promising;261 the apparent freezing of the policy development does not augur well for the actual degree of accommodation of religious diversity in this respect. This negative trend was confirmed by the Minister of Education’s announcement mid June 2001 that religious instruction at schools should consist only of a comparative study of various beliefs and not of instruction in a particular belief. This would be incorporated in a new religious policy for schools, which would be available for the public before the end of 2001. This announcement immediately triggered several negative reactions from religious groupings.262 Consequently, the resolution of this sensitive issue is not in sight as yet. The South African Schools Act also contains sections that are relevant for the accommodation of religious diversity and the realization of the right to identity of the various religious communities at school level. Section 7 reads as follows: “subject to the Constitution and any applicable law, religious observances may be conducted at a public school under rules issued by the governing body if such observances are conducted on an equitable basis and attendance at them by learners and members of staff is free and voluntary.” This not only underscores that there is room for provincial policy and a decision, which is adapted to the specific circumstances of the specific school, but it is also an implementation of section 15 (2), 1996 Constitution. Furthermore, whereas in South Africa most schools are public (about 98 percent) and have a Christian mission statement,263 section 5 (3)(b) of the South African Schools Act provides protection in that it states that a learner cannot be refused access to a public school on the basis that he or his parents refuse to subscribe to the mission statement of the school. Finally, it should be noted that the South African Schools Act also provides for the possibility that if religious groupings own ground, that grouping can require that the distinct religious character of the school, made public under the Act, is recognized in an appropriate manner consistent with the Act.264 In principle, these provisions in the South African Schools Act reflect a willingness to accommodate the religious diversity of the country (without getting into minority rights terminology) within the framework of a not-absolute separation between church and state. Nevertheless, only the actual implementation and practice will reveal to what extent this type of accommodation materializes. Language in Education An even more sensitive aspect of curriculum choices is the policy concerning language of instruction, as was also exemplified by the constitutional negotiations

196

Minority Protection in Post–Apartheid South Africa

on the (sub)section concerned. The relevant constitutional sections are not only the nondiscrimination section, which prohibits both direct or indirect discrimination on the basis of language, but also part of the section on the right to education. More specifically, “Everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practicable” (italics added).265 In South Africa266 as in the rest of the world, there is a growing acknowledgement of the importance of mother-tongue education for the cognitive and emotional development of children, which is obviously related to future academic and job prospects, the right to identity, and overall, the principle of substantive equality.267 The importance of learning the “dominant” language, English, for one’s future success is also acknowledged. Nevertheless, the Constitution is careful not to impose mother-tongue education, as was the case under apartheid but mentions the “official language or languages of their choice.” The actual implementation of this section is thus not only going to be determined by the official interpretation of “where reasonably practicable” but also by the choice of the learners concerned. It was further remarked that the prohibition of discrimination on the basis of language might mean “that there is a need for constant reviews of the effect of language policy choices that are being made in the context of education, so that if they are having a discriminatory effect, they can be changed.”268 The South African Schools Act enables the Minister of Education to determine national norms and standards for language policy in public schools, subject to the Constitution and itself.269 The Act allows individual schools to adjust the exact rules to the demographics and student wishes there, as it states that “[t]he governing body of a public school may determine the language policy of the school subject to the Constitution, this Act and any applicable provincial law.”270 The Minister of Education has proclaimed Norms and Standards Regarding Language Policy Published in Terms of Section 6 (1) of the South African Schools Act, 1996.271 The basic principles of this document should be seen against the background of the Language in Education Policy, which underscores the importance of multi-lingualism and additive bilingualism in education272 and imposes an obligation on the schools to promote multi-lingualism.273 These National Norms and Standards can be considered a genuine attempt to realize the individual student’s choice regarding medium of instruction as much as reasonably possible, while taking resource and other practical constraints duly into account.274 The Norms and Standards make explicit what is meant by “where reasonably practicable”275 and take into account local conditions,276 the need to coordinate the policy choices at regional level, and the need for a minimum number of students asking and/or willing to follow education in that language.277 It should be emphasized that, in order to realize these policies, teachers need urgently to be retrained and prepared for “dealing with increasingly multilingually composed classes and in providing epistemological access to the curriculum for all learners in terms of the new language policy for schools.”278

The Implementation and Application Phase

197

Although this policy seems rather progressive, some critical remarks regarding the principles themselves have been voiced and should be mentioned at this point. There is no attention at all for nonofficial languages, such as the Indian languages, despite their significant presence in Kwazulu-Natal. The numerical criteria are furthermore so high that they de facto exclude the possibility of instruction in one of the smaller official languages, like Venda or Ndebele. Furthermore, little attention is paid to the way in which African languages should be promoted and developed, as is demanded by section 6(2), 1996 Constitution.279 It should also be remarked that “choice” tends to be socially and politically constrained, more specifically pro-English, which is determined by the legacy of apartheid’s indoctrination about the lack of value of indigenous languages and the perception of the absolute power of English.280 The purpose of language awareness campaigns as organized by the National Departments of Education and of Arts and Culture is exactly to counter these internalized negative perceptions about the African languages and their value in future life.281 Looking at minority protection from a strict point of view, these campaigns would not be acceptable, as one of the crucial defining factors for a minority is the wish to retain its specific (linguistic) characteristics. However, the pervasive influence of apartheid policies cannot be denied. Although the African communities wish to hold on to their languages, several have the impression that they can only “make it” in their careers if they have been taught in English, which is incorrect. Consequently, these campaigns would not be devised so as to create that wish but to make the Africans aware of the value of mother-tongue education for future success. A September 2000 sociolinguistic survey conducted by Markdata on behalf of PANSALB has in any event concluded that a clear majority of respondents did select the English language tuition,282 so there seems to be a growing awareness of the importance of mother-tongue education, also among the African population. This rather inventive, although not perfect, policy regarding language in education is quite new and will need to be further developed and adapted in the coming years for its potential benefits to be revealed.283 Consequently, the actual degree of its ability and success in accommodating the enormous linguistic diversity in South Africa can only be evaluated in a couple of years’ time. However, in September 2000, Minister Asmal complained that up until that time there had never been concerted and focused effort to enact his department’s language policy in the classroom, but apparently certain projects did aim at improving this situation.284 A research project undertaken by the National Center for Curriculum Research and Development in May 2000 had revealed that the language in education policy has “several loopholes, it does not spell out clearly enough steps for implementation and it has not sufficiently taken into account the dynamic, changing demographic conditions and social attitudes that militate against it.” It continued by recommending that “a revised policy will have to take into account broader social attitudes towards language, as well as the teaching and learning conditions that pertain in varying schools.”285

198

Minority Protection in Post–Apartheid South Africa

Some remarks should also be made about the language policy at universities and other institutions of tertiary education. The National Council on Higher Education has to advise the Minister on such policy,286 but that advice was not going to be formulated before June 2001.287 Minister Asmal has in any event also established a working group of experts to advise him on and help him design a language policy for higher education. The Minister emphasized that language should not be a bar to access and warned against the simple reduction of language to culture and ethnicity. In this respect he added that the challenge facing Afrikaans-medium institutions is to ensure that the institutions comply with the spirit of the Constitution and the policy priorities of the government. While government is committed to institutional autonomy, the latter cannot be allowed to prevent change and transformation.288 The status quo currently is the dominance of English and a decent representation of Afrikaans. However, because the presence of Afrikaans in universities is being scaled down, there is growing unease among some Afrikaners, as exemplified by the resistance of Stellenbosch University to give up its (quasi) singlemedium status.289 Although some academics are in favor of the maintenance of English as the dominant language at university level, provided that students would get support in their first languages,290 there is a general awareness that institutions of tertiary education need to develop African languages. The eventual goal would be that the African languages could be used as the medium of instruction at university level,291 while a solid grounding in English is ensured.292 The Working Group of the National Commission on Higher Education endorsed that position, arguing that “[t]he question we have to ask is how we can retain the advantages of having a well-developed English-based . . . system of tertiary education while we begin the process of enabling the African languages to serve similar academic functions.”293 The Working Group also emphasized that first languages are a more viable way to knowledge than English, even at tertiary level.294 No meaningful, let alone conclusive, assessment is possible because the official policy has not been formulated as yet but the eventual determination of a language policy for higher education and its further implementation are forthcoming and will be decisive for the project of multi-lingualism in South Africa. Private Educational Institutions Finally, it should be highlighted that the Constitution provides for and determines itself the most important conditions for private educational institutions: to maintain certain educational standards, to be registered with the state, and not to discriminate on the basis of race.295 The South African Schools Act and the Higher Education Act both specify these conditions296 and although the Constitution does not oblige the state to subsidize private educational institutions,297 this is explicitly provided for in the South African Schools Act298 and further developed in Norms and Standards for School Funding.299 The fact that private educational

The Implementation and Application Phase

199

institutions are allowed and even sponsored by the state is important from the angle of minority protection and the right to identity of minorities, because it creates the possibility for population groups that feel the need to create “minority” schools to do so.300 It is, however, too soon to evaluate to what extent this possibility is realistic and is effectively used by the various population groups. The National Department of Education updates regularly a list pertaining to the registration of private higher education institutions, in which it also points out that the registration of such institutions aims at ensuring quality of education and the continuing transformation of the education system.301 In other words, private higher education has a role to play in complementing public education. The National Plan of Higher Education furthermore points out that, at present, private institutions of higher education are inadequately organized and goes on to suggest that “where appropriate, they should be subject to the same requirements as public higher education institutions.”302 By way of conclusion regarding education in post-apartheid South Africa and its contribution to minority protection, the accommodation of the country’s population diversity, and the right to identity of the various population groups, it can be said that there are several inventive policies appear to reflect a genuine wish to achieve that goal by enabling a significant degree of diversity and allowing flexible solutions to be adapted to the specific circumstances at regional and even school level. Most of these policies are, however, rather young and especially regarding language in education, there are many hurdles to a smooth implementation of the principles. Only the actual implementation over time will reveal to what extent the various education policies contribute to the right to identity of the various population groups in South Africa and respect the goal and limitation of substantive equality. MINORITY RIGHTS In the analysis of the 1996 Constitution it was argued that there are several sections of the Bill of Rights that can be considered as minority rights provisions even though they are not explicitly framed in these terms.303 Sections 29 (2) and 15 (3) are discussed in the sections dealing with education and religion respectively. The analysis here will focus on sections 30 and 31 of the Bill of Rights, the implementation of the Commission provided for in section 185 and also on certain relevant parts of judgements of the Constitutional Court. The corresponding provision of section 30, 1996 Constitution in the 1993 Constitution was included to serve the purpose of protection of group and communal interests but the addition of section 31 in the 1996 Constitution, which is more explicitly a minority protection provision, leaves the specific function of section 30, 1996 Constitution rather unclear.304 Section 31, 1996 Constitution is very close in formulation and intent to article 27 ICCPR and can thus be identified as a minority rights provision.305 In view of the past and more specifically apartheid’s abuse of the minority rights discourse,

200

Minority Protection in Post–Apartheid South Africa

it is definitely remarkable to have such a constitutional provision so soon after the official abolition of apartheid. There are, however, differences in formulation, which can be related to sensitivities due to apartheid’s legacy in this regard. Because of the strong similarities, it can nevertheless be argued that one can rely on the General Comment and maybe even on the UN 1992 Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities as interpretative guidelines for a more precise content of that section.306 In this respect, Currie formulates an interesting argument in favor of positive state obligations of some kind regarding the “communities” of section 31, 1996 Constitution, when he postulates that the opinion of the HRC in its General Comment on article 27 ICCPR: may be readily adapted to s 31. The s 31 right requires for its exercise the existence of an identifiable community practicing a particular culture or religion or speaking a particular language. Therefore, if as a result of state action or inaction, that community loses its identity, if it is absorbed without trace into the majority population, the individual right of participation in a cultural or linguistic community will be harmed. Section 31 therefore certainly requires non interference with a community’s initiatives to develop and preserve its culture. In addition, it is likely that it requires positive measures by the state in support of vulnerable or disadvantaged cultural, religious and linguistic communities that do not have the resources for such initiatives.307

Only the further implementation of this constitutional section will reveal to what extent this position is effectively followed in South Africa. In this regard, it was not unreasonable to anticipate that the discussions about and the policy documents on the status, powers, and functions of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (and the cultural councils it can recommend to recognize or establish)308 would also include considerations about the appropriate implementation of section 31’s rights for persons belonging to these communities.309 This, however, has not really been the case. It seems that one was careful to avoid addressing these sensitive issues for the time being. In May 2001 the final draft bill was still not before Parliament,310 and it remains to be seen what will happen during the eventual parliamentary debates and voting on the bill.311 It should in any event be underlined that section 185 and the title of the Commission seem to imply a stronger recognition of the group dimension of these “communities”/minorities, because it refers to rights of these communities as such and not to rights of the members of these communities. Considering the choice in section 31 for collective rights instead of real group rights, the formulation of section 185 is arguably a simplification of the language of the Constitution. Nevertheless, that formulation might be drawn upon in the further implementation debate regarding section 31. There were simultaneous debates organized in Parliament and the provincial legislatures on the section 185 Commission312 on 4 August 1998313 and a further national conference was organized on 24 September 1998 more generally on the

The Implementation and Application Phase

201

“promotion and protection of the rights of cultural, religious and linguistic communities.” That consultative conference focused on issues of concern for cultural, religious, and linguistic communities, the objectives and functions of the Commission and its composition.314 The title of the conference supports the idea that the formulation of section 185 and its apparent recognition of group rights might lead to a more positive and flexible attitude towards the group rights discourse.315 Such a development would be rather progressive compared to the ongoing quasi-total rejection of group rights at the international level. It should be underscored that during the debates on 4 August 1998, nation building and the need for national unity seemed to be favored by the key speakers for the ANC, and there is thus a danger that the diversity in the often invoked theme of “unity in diversity” might be undervalued.316 Minister Moosa (then Minister of Constitutional Development, ANC) focused on the need to promote nation building and to move away from apartheid. Although he recognized the value of the country’s cultural diversity, the unity pole of unity in diversity apparently gets precedence. Then Deputy President Mbeki had a more generous attitude317 in that the principles he espoused were much more in favor of diversity, without neglecting the importance of nation building and national unity.318 He recognized that in South Africa, the protection of the “communities” mentioned in section 185 (section 31 and arguably also section 235) requires a multicultural approach or a search for an appropriate accommodation of the country’s population diversity. He furthermore confirmed the link between minority protection and the substantive equality principle with its critical place in the new constitutional order. It was also striking that several political parties, namely the NP, FF and IFP, explicitly referred to the link between section 185 and section 235 on selfdetermination. Beyers from the NP qualified section 185 and the Commission and its promise of cultural councils for communities319 even as a measure of internal self-determination, which is to be preferred to forms of external selfdetermination, while Mulder for the FF underlined that section 235 also refers to communities bound by a common cultural and language heritage. In this respect it can be postulated that the wording as well as the alleged content of the “explicit” minority rights provisions and the provision on self-determination of the 1996 Constitution appear to acknowledge and confirm the interrelation between minority rights and the right to self-determination for an adequate minority protection/accommodation of population diversity in South Africa. In line with the sensitivity of this topic, the development of concrete legislation will be painstaking,320 and it will not be easy to strike the right balance between unity and diversity in this country, characterized by its deep divisions, high population diversity, and apartheid legacy.321 Only the eventual Act on the section 185 Commission and its implementation and application will determine the exact degree of minority protection realized via that Commission, while the development of legislation on the rights enshrined in section 31 will probably not be in the immediate future.

202

Minority Protection in Post–Apartheid South Africa

The final draft bill on the establishment of the section 185 Commission emphasizes in the preamble the goals of unity in diversity and the promotion of equality. The primary objects of the Commission are very broadly defined to the extent that not much clarification is added to the constitutional provision itself, while part 5 on the Functions and Powers of the Commission is not very helpful either. Section 4 of the draft bill indicates as primary objects of the section 185 Commission: (a) to promote respect for the rights of cultural, religious, and linguistic communities; (b) to promote and develop peace, friendship, humanity, tolerance, and national unity among cultural, religious, and linguistic communities on the basis of equality, nondiscrimination and free association; (c) to recommend the establishment or recognition of cultural and other councils for a community or communities in South Africa.

Obviously, the reference to the value of the equality principle both as goal and as limitation to activities of the Commission on behalf of the Communities is important as it takes up the corresponding international doctrine. The section on functions and powers of the Commission contains several clauses pertaining to staff and financing and has only two clauses that provide a further indication of its future activities. According to section 21 of the draft bill, the Commission may for purpose of achieving its primary objects: (a) when it so decides or when a request is made to it by a national consultative conference— (i)

monitor, investigate, research, educate, lobby, advise, and report on any issue concerning the rights of cultural, religious, and linguistic communities;

(ii) facilitate the resolution of conflicts or friction between cultural, religious, and linguistic communities or between any such community and an organ of state; and (iii) receive and deal with complaints and requests by a cultural, religious, or linguistic community; (b) make recommendations to a national consultative conference on draft resolutions before the conference on requests to and priorities for the Commission.

One of its more specific tasks is indeed to convene annually a national consultative conference to discuss issues of relevance to the protection of cultural, religious, and linguistic communities in South Africa. That conference is composed of members of government, the Commission itself, and delegates from cultural, religious, and linguistic communities invited by the Commission to represent those communities.322 It is also relevant to point out that the composition of the Commission should be broadly representative of the main cultural, religious, and linguistic communities in South Africa, even though it raises several questions as to practicalities.323

The Implementation and Application Phase

203

The draft bill furthermore underlines the necessity for the Commission to coordinate its activities with institutions with overlapping mandates, like PANSALB and the South African Human Rights Commission.324 The eventual status, functions, and powers of the Commission for the Promotion and Protection for the Rights of Cultural, Religious and Linguistic Communities, and the concomitant institutional support that is established for minority protection values, will reveal to what extent post-apartheid South Africa is serious about an effective accommodation of its population diversity and a realization of the right to identity of its various minority groups.325 An analogous argument can be made regarding the further implementation of the section 31 rights and their application. Currently, the picture is too blurred and in motion to formulate a meaningful evaluation. As the subsequent discussion and analysis will reveal, a similar situation seems to emerge concerning the accommodation of religious minorities and the realization of self-determination for a “community sharing a common cultural and language heritage” through a “volksstaat.” The case law of the courts and especially the Constitutional Court is of course also relevant and important, not only prior to the adoption of further legislation but also for the interpretation and review of the eventually adopted legislation. Only the most important cases in which statements are made that have implications for minority protection will be discussed at this point. Sachs J makes several important statements regarding minority protection in international law and its application in South Africa (concerning the Afrikaner minority) in his concurrent opinion in the Gauteng Education Case,326 which dealt with the education provision of the 1993 Constitution and more specifically the obligation of the state in relation to minority schools.327 Sachs J argues that the theme of multiculturalism, and thus accommodation of cultural diversity, is an important consideration of the Constitution.328 He does add, however, that the theme of diversity has markedly less constitutional pungency than the central theme of equality (and redress of disadvantages from the past). Consequently, he concludes that “the dominant theme of the Constitution is the achievement of equality, while considerable importance is also given to cultural diversity and language rights, so that the basic problem is to secure equality in a balanced way that shows maximum regard for diversity,”329 and there is a need to harmonize these two matters. The judge, finally, makes an important remark about the application of the principles of minority protection to the Afrikaner minority in South Africa, pointing to the scope of the latter’s legitimate claims: “As far as members of the Afrikaans speaking community are concerned, they could complain if the state treated them less advantageously than other groups, their claim to retain a privileged situation, however, would not have the same, or any, force.”330 Although a concurrent opinion of one of the judges of the Constitutional Court does not carry that much weight, it can reasonably be predicted that the sentiments expressed by Sachs J will be of assistance in construing the implications and

204

Minority Protection in Post–Apartheid South Africa

significance of section 31, 1996 Constitution, even though the latter had not been enacted at the time. Similarly, Sachs J made other relevant statements about the implications of substantive equality for minority protection and accommodation of population diversity in his concurrent opinion in the Gay Case, the most relevant sections of which are: Equality means equal concern and respect across difference. It does not pre-suppose the elimination or suppression of difference. Respect for human rights requires the affirmation of self, not the denial of self. Equality therefore does not imply a leveling or homogenization of behavior but an acknowledgement and acceptance of difference. . . . the scope of what is constitutionally normal is expanded to include the widest range of perspectives and to acknowledge, accommodate and accept the largest spread of difference.331

It should be emphasized that the majority judgement explicitly agrees with the sentiments expressed in Sachs J’s opinion.332 Overall, the 1996 Constitution seems to reveal a certain openness for minority protection concerns and minority rights, which is, to some extent, reflected in the opinions of Judge Sachs of the Constitutional Court. The latter openness always goes hand in hand with the necessary regard for the broader context of the postapartheid South African society with its urgent need for transformation and redress of past disadvantages.333 However, the analysis of the further implementation and actual attitudes towards minority rights and minority protection has revealed a tendency to let unity concerns prevail over the creation of meaningful space for diversity. THE ACCOMMODATION OF RELIGIOUS DIVERSITY: MUSLIM PERSONAL LAW The point of departure needs to be that religion is in general an important part of people’s identity in South Africa, which entails a need for an appropriate governmental attitude towards the diversity of religions. As was revealed by the Lawrence Case, the Constitutional Court is divided about the degree of evenhandedness demanded from the state considering the non-absolute separation of state and religion and demands of the prohibition of discrimination on the grounds of religion and of religious freedom in general.334 The ongoing developments in the case law of the Constitutional Court, hopefully towards a more unified position, will be important for the eventual assessment of the extent to which post-apartheid South Africa protects its religious minorities. Other more specific issues concern religious instruction in the public curriculum and also the accommodation, under section 15 (3), 1996 Constitution, of divergent systems of personal and family law that are religiously inspired.335 The recognition of Muslim336 marriages, and related to that Muslim personal law, has been a sensitive point for decades because of the dominance of Christian values in apartheid regulations. It needs to be addressed urgently. The central

The Implementation and Application Phase

205

discussion is focused on gender discrimination in its manifold expressions within Islam and thus raises the difficult question of how to find an appropriate balance between the right to religious identity (section 31) and religious freedom (section 15) on the one hand and the central principle of equality in the new constitutional order on the other. In other words, the central question is how the integrity of Muslim principles can be maintained within the dominant legal system. Understandably, the Muslim community in South Africa has been highly divided as to the appropriate approach.337 After a long, protracted consultation process that started in June 1986,338 the South African Law Commission (SALC) published its Issue Paper 15 entitled Islamic Marriages and Related Matters in May 2000. Several cases since 1994 had indeed confirmed that the main and most urgent problem is the lack of recognition of marriages339 celebrated according to Muslim rites and its unjust results, like the illegitimate nature of the children and the unprotected position of the wife in respect of third persons. Prior to analyzing the Issue Paper of SALC, it seems appropriate to discuss the most relevant case law. The first case that should be analyzed concerning the recognition of Muslim marriages is Ryland v Edros.340 Although it is not decided by the Constitutional Court, it does signify the first step towards a broader judicial recognition of Muslim marriages and the resulting status of the spouses, which is even more important in anticipation of legislation regulating this recognition. The case deals with claims between the ex-spouses of a Muslim marriage341 after it was dissolved according to Muslim law. The Court holds that according to Muslim faith and law potentially polygamous marriages are not contrary to boni mores (public morals) (contra the position under apartheid) and that the “enforcement of the contractual relationship arising from them (is) no longer per se contrary to public policy.” The Court’s reasoning to come to this conclusion is based on the new constitutional dispensation and draws upon the constitutional principles of equality and tolerance, which would call for a reasonable accommodation of diversity within a plural society:342 [U]nderlying the values manifested by the fundamental rights provisions are the principle of equality and the principle of tolerance and diversity and the recognition of the plural nature of our society—these principles inform the concepts of public policy and the boni mores which courts have to apply in developing the common law—accordingly, decisions such as that of Ismail v Ismail 1983 (1) SA 1006(a) which were based upon the then prevailing perception of what was contrary to public policy in terms of the view or presumed views of only one group in a plural society will no longer operate—it is inimical to all the values underlying the Interim Constitution for one group to impose its values on another—what is contrary to public policy is accordingly to be determined by reference to those values which are shared by all right-thinking members of the community as distinct from only one section of it.343

It should be underscored though that the Court was careful in limiting its decision to situations of not actually polygamous marriages and to the specific kind

206

Minority Protection in Post–Apartheid South Africa

of contractual claims in this case.344 Nevertheless, the holding in this case implies that the concept of illegitimacy in the context of contract law should be judged in such a way that it not only takes the values of one segment of the national population into account but also, and especially, those values of the religious-cultural group where the contract is concluded.345 The above reasoning further clarifies that the issue of the recognition of marriages under section 15 (3), 1996 Constitution is closely related to the protection of religious minorities. In Fraser,346 the Constitutional Court makes several important statements about the fact that under current South African law, certain marriages are not legally recognized and also about the concomitant injustices for the spouses and the children involved. The case itself deals with the adoption of the only child of a couple that was not married. It deals more specifically with the constitutionality (in view of the equality provision) of section 18(4)(d) of the Child Care Act (No 74 of 1983) that distinguishes between legitimate and illegitimate children regarding the required consent by the parents. After highlighting the vital importance of equality in the new Constitution, the Court assesses the constitutionality of the impugned section also and explicitly in light of the non-recognition of Muslim marriages (albeit by way of obiter dicta): In my view the impugned section does in fact offend section 8 of the Constitution. It impermissibly discriminates between the rights of a father in certain unions and those in other unions. Unions which have been solemnized in terms of the tenets of the Islamic faith, for example, are not recognized in our law because such a system permits polygamy in marriage. It matters not that the actual union is in fact monogamous. As long as the religion permits polygamy, the union is “potentially polygamous” and for that reason, said to be against public policy. The result must, therefore, be that the father of a child born pursuant to such a religious union would not have the same rights as the mother in adoption proceedings pursuant to section 18 of the Act. The child would not have the status of “legitimacy” and the consent of the father to the adoption would therefore not be necessary, notwithstanding the fact that such a union, for example under Islamic law, might have required a very public ceremony, special formalities and onerous obligations for both parents in terms of the relevant rules of Islamic law applicable.347

The Court concludes that the section concerned constitutes a breach of the right to equality enshrined in section 8, 1993 Constitution, because there is no justification available in terms of the general limitations provision of the Bill of Rights.348 Although the case is decided in terms of the nondiscrimination provision, considerations of substantive equality are also involved. The reasoning in Fraser, which also seemed implicated in the Ryland judgement, exposes and denounces that the South African boni mores regarding the validity of marriage and its consequences does not reflect the broad South African consensus but only the values of a certain segment of the population. The Christian values of the majority of the South African population dominate while the values of the Muslim minority are neglected and denied.349 Both of these judgements reflect an interpretation of the Constitution, which confirms and upholds pluralism

The Implementation and Application Phase

207

and accommodation of the population diversity. At the same time, these judgements expose the problems of formal equality in that they reveal that uniform rules often lead to inequality, instead of equality, due to the diverging cultural and religious identities of cultural, linguistic, and religious groups.350 Both cases reject simplistic majoritarianism351 and focus on and bring to life substantive equality and its importance for minorities352 by deconstructing the apparent equality of a common law and a legislative rule, by piercing through the appearance of equality of the legal rules, and by identifying the real inequality behind that appearance as unconstitutional and in violation of the equality provision.353 Consequently, these cases are important building blocks for a jurisprudence aimed at achieving substantive equality by creating reasonable scope for and protection of differential identities and ways of life. Despite the apparent promises held by Fraser and Ryland v Edros, Amod demonstrates that Ryland v Edros was not generally accepted as precedent for the recognition of the legal consequences of a Muslim marriage.354 The Amod Case concerned the issue of whether a woman married under Islamic law can claim damages for compensation for the death of her spouse. The High Court distinguishes Ryland v Edros because the holding of that case would be restricted to claims between the parties to such a Muslim marriage. It holds furthermore that according to the Constitutional precepts, the alteration or elimination of an existing principle of common law is the function of the legislature, not the courts. In its judgement on the request for direct appeal,355 the Constitutional Court stresses that the Supreme Court has jurisdiction to develop the common law to meet the needs of a changing society, which needs now to be exercised in accordance with the “spirit, purport and objects” of the Bill of Rights.356 The Court argues that it is in the interests of justice that the Supreme Court of Appeal would hear the case first. Consequently, it denies direct appeal while underscoring that it would be open for either party to approach it again for leave to appeal after the matter has been decided by the Supreme Court of Appeal.357 The Supreme Court of Appeal reversed the decision of the High Court on 29 September 1999. Although the Islamic marriage was not registered as a civil marriage, according to the Court, the deceased had a duty to support his wife “in terms of the Islamic marriage which is a contract.”358 Furthermore, the Court held that: The insistence that the duty to support which such a serious de facto monogamous marriage imposes on the husband is not worthy of protection can only be justified on the basis that the only duty of support which the law will protect in such circumstances is a duty flowing from a marriage solemnized and recognized by one faith or philosophy to the exclusion of others. This is inconsistent with the new ethos of tolerance, pluralism and religious freedom which . . . was firmly in place when the cause of action in the present matter arose on 25 July 1999.359

Although the Supreme Court did not pronounce on the legal validity of Muslim marriages as such, it did explicitly recognize certain legal effects flowing from a de facto monogamous marriage:

208

Minority Protection in Post–Apartheid South Africa

For the purposes of the dependant’s action the decisive issue is not whether the defendant concerned was or was not legitimately married to the deceased, but whether or not the deceased was under a legal duty to support the dependant in a relationship which deserved recognition and protection at common law. If the marriage between the dependant and the deceased was a valid marriage in terms of the civil law, she would of course have the right to pursue a dependant’s claim based on the duty of the deceased to support her but it does not follow that if she was not so married, she should have no such right. On the analysis I have previously made she would indeed have such a right even if she was not validly married to the deceased in the civil law if the deceased was under a legally enforceable contractual duty to support her following upon a de facto monogamous marriage in accordance with a recognized and accepted faith such as Islam.360

The previous analysis of relevant case law has made abundantly clear that there is still a need for strong, legislative recognition of (certain) Muslim marriages. As the SALC’s Issue Paper on Islamic Marriages prepares the way for legislation in this matter,361 it should be discussed. First of all, it should be mentioned that the Recognition of Customary Marriages Act362 already opened the way for recognition of Muslim marriages while maintaining the equal status of the wife.363 Issue Paper 15 does not contain a detailed proposal of the Act but focuses on certain general concerns for which it invites submissions. The paper underlines from the outset that: “[t]he issue of greatest concern for any legislation recognizing aspects of Muslim Personal Law is the compatibility of such legislation with the Bill of Rights as a whole but particularly its compatibility with the guarantee of equality.”364 It contains several proposals regarding the envisaged piece of legislation. First of all, it is proposed that couples be accorded the right to choose a marital system that is compatible with their religious beliefs and the Constitution.365 With respect to the marriage contract it is stipulated that it is important that it should protect both parties equally.366 Regarding the recognition of existing marriages, a distinction is made between monogamous and polygamous marriages. The recognition of the latter is suggested to be made subject to a number of formal and substantive requirements.367 The fact that Islamic law recognizes the institution of polygamy but not the institution of polyandry “creates a potential inequality which, it is suggested, can only be mitigated if the circumstances in which polygamy is permitted are narrowly circumscribed.”368 Regarding polygamous marriages several difficult and sensitive issues are outlined, like the choice of property regime that will govern the marriage.369 The Recognition of Customary Marriages Act 120 of 1998 is often referred to as dealing with similar questions.370 The typical Islamic institution of Talaq is also addressed, as it constitutes a particularly contentious issue. Talaq enables the husband to pronounce divorce without specified reasons, while it is suggested in the Issue Paper that parties to an Islamic marriage should in principle only be able to obtain a divorce on the same grounds as those contained in the (general) Divorce Act 70 of 1979.371 Although this report and the apparent new impetus that exists regarding the recognition of Islamic marriages is to be welcomed, it remains to be seen whether

The Implementation and Application Phase

209

the Muslim community, in its diversified manifestations (as the various indigenous communities) would agree with the kind of equality-based approach to the recognition of the marriages concerned. Furthermore, by mid-2001 the draft bill, ensuing from the Issue Paper, had not been approved by Cabinet. This extensive delay in policy development regarding the accommodation of religious diversity is problematic since it arguably reflects an unwillingness to deal with the sensitive issues involved. Of course, the broader question of the incorporation of Muslim personal law in the national legal system is not furthered by this delay. In general, there appears to be a certain awareness of the need to protect and promote the right to identity of the various religious communities and the concomitant accommodation of religious diversity. It would be an oversimplification to argue that religion is a non-issue and can be neglected in post-apartheid South Africa. The developments regarding the Islamic Marriages Draft Bill (and the upcoming Act) are undoubtedly very important. Nevertheless, it remains to be seen whether the Muslim community, in its diversified manifestations (as the various indigenous communities) would agree with this kind of approach to the recognition of the marriages concerned. Furthermore, there are undeniably extensive delays in policy development, which should be addressed as soon as possible. “VOLKSSTAAT” AS A FORM OF SELF-DETERMINATION FOR “COMMUNITIES WITH A COMMON CULTURAL AND LANGUAGE HERITAGE” Throughout the constitutional negotiations preceding the agreement on section 235, 1996 Constitution, it was emphasized time and again that the provision should and would be framed in a general way so that it could also be used by other communities in South Africa that would feel the need for a measure of (territorial) self-determination to preserve their separate identity. Nevertheless, that provision was negotiated and pursued by a certain section of Afrikaners and up until now, they are the only ones making claims in this regard, more specifically for a Volksstaat.372 Since the other possible features of self-determination are analyzed elsewhere,373 it seems acceptable to focus here on the Volksstaat and its chances and inherent difficulties under the new constitutional dispensation. It is important to place the Volksstaat demands against the background of the sensation of disempowerment by several Afrikaners across the political spectrum, the perceived onslaught on their language, culture, and history (by the new government), and the feeling that due to the affirmative action policies in the job market they do not get a chance.374 Although only some Afrikaners actually turn to political parties that have the establishment of a Volksstaat as part of their political program,375 the increasing alienation and lack of integration in the new South Africa should be countered, without going beyond what is demanded by substantive equality. It should be mentioned that in the meantime there are more political parties actively promoting self-determination via a Volksstaat.376 The Freedom Front is

210

Minority Protection in Post–Apartheid South Africa

still the party that is most influential and focused,377 and its broad vision of selfdetermination is, consequently, discussed more thoroughly. The party does not limit its self-determination aspirations to the establishment of a Volksstaat and is also concerned about cultural self-determination via cultural councils and the implementation of the section 185 Commission.378 It does consider a Volksstaat the ultimate goal, albeit one that needs to be incrementally achieved.379 Although the Volksstaat is primarily envisaged as a measure of internal self-determination, which takes the form of territorial autonomy, external self-determination is also considered by way of last resort.380 Several members of the Volksstaat Council underscored at a conference on the Commission for the Promotion and Protection of Cultural, Religious and Linguistic Minorities in 1997, that although that Commission would be important, real cultural autonomy would not be possible without a territory.381 The establishment of a Volksstaat raises several difficult questions that are related to apartheid’s legacy. The retreat into a Volksstaat could be seen as an attempt to escape the affirmative action programs and other broader redistribution policies aimed at redressing the disadvantages created by apartheid. More problematic is the fact that forms of territorial self-determination would entail the use of designated areas for specific population groups, which would be reminiscent of the homeland and group areas strategy under apartheid. How can the postapartheid regime officially recognize racial/ethnic exclusivism and separatism without losing credibility? Related to this question is the way Afrikaners or “acceptable members of a Volksstaat” would be defined and more specifically whether it would have a racial component or merely a language (cultural)382 component. An equally important issue is the need for strong guarantees that the non-Afrikaners already living in the Volksstaat territory would not be discriminated against and would have all the human rights enshrined in the Bill of Rights.383 That matter ties in with the more general question about the exact competencies and degree of autonomy for a Volksstaat. It is not clear whether a Volksstaat will have the competence to outline an immigration policy, but it would be unlikely that race exclusivity can be an acceptable basis for such a policy.384 These and other sensitive matters related to a Volksstaat tend to explain why the ANC government is rather reluctant to facilitate, let alone support, its realization. Ideological and principled problems aside, there are also several practical problems related to the development of a Volksstaat. The Afrikaner population is dispersed over the South African territory and most people interested in living in a Volksstaat would have to migrate and give up their home base, established lives, and immutable interests, which is not an easy thing to do. A related problem is the determination of boundaries for a Volksstaat. As was manifested in the first and second interim report of the Volksstaat Council, there were serious internal divisions in the Volksstaat Council in this regard.385 It seems furthermore doubtful that a separate Afrikaner state would be economically viable and such enterprise appears thus to be doomed from the start.386

The Implementation and Application Phase

211

It should be underscored that the Volksstaat Council and the Freedom Front both exhibit an understanding of most if not all of these ideological and practical problems. Consequently, a lot of attention goes to an incremental approach, as well as the realization of corporate or cultural self-determination for the Afrikaners living (and staying) outside the Volksstaat.387 Furthermore, it is often explicitly acknowledged that there cannot be forced removals and that the Volksstaat would have to comply with the Bill of Rights in all respects.388 The Volksstaat Council eventually opted for the Northern Cape, an area that is sparsely populated and underdeveloped and where a Volksstaat could be realized incrementally with limited impact on the rest of South Africa and the other inhabitants.389 The Freedom Front is conscious of the practical and substantive limitations regarding the ultimate goal of an Afrikaner Volksstaat. The party also adopts an incremental approach with focus on the North-Western Cape and recognizes the need to protect non-Afrikaners within the Volksstaat in view of its acceptance of the principles of nonracialism, democracy, and fundamental rights.390 The FF seriously pursues measures of corporate self-determination391 and its strategy to build towards a Volksstaat distinguishes a short-, medium-, and long-term plan.392 On the short term the countrywide establishment of cultural councils is envisaged wherever the need exists and where enough people support it. Preferential settlement areas should be identified as a step on the way to territorial selfdetermination, while the need for legislation implementing section 185, 1996 Constitution is also highlighted. Medium-term actions include the statutory establishment of Afrikaner Councils on the local and provincial level as well as a national Afrikaner council, the development of regional autonomy in areas with Afrikaner concentrations, and, finally, the establishment of two nucleus areas in the Northern and Western Cape that are deemed essential for future Volksstaat development. The Freedom Front’s long-term goal is the development of the two nucleus areas until they reach one another to form a Volksstaat. The party realizes at the same time that the degree of self-determination actually reached will depend largely on the volition of people, the realities on ground level in the area concerned, and the negotiability. The eventual establishment of a Volksstaat would thus be dependent on the agreement of the people already living in the area and of the competent authorities. The 1996 Constitution moves away from a recognition of a right of selfdetermination that might result in a Volksstaat.393 The wording (and location) of section 235 already gives significant indications, in that it clearly does not enshrine a right but merely mentions that the recognition of the notion of the right to self-determination is not precluded. The way it will be exercised will furthermore be “determined by national legislation,” which amounts to another safety valve for the ANC government to prevent the actual realization of a Volksstaat.394 Parliament has the competence to abolish the Volksstaat Council at will395 and in view of government’s indications about upcoming legislation to that effect, the Volksstaat Council officially disbanded 30 March 1999. It appears that the Council will continue to exist as a privately funded nongovernmental organization.396

212

Minority Protection in Post–Apartheid South Africa

Since the coming into force of the 1996 Constitution, negotiations between the ANC and the FF397 are ongoing398 without, however, any significant breakthrough.399 It is striking though that whenever there is a strong reaction by Afrikaners, due to perceived threats to their language and culture by one or another new policy document, which include stronger claims to retreat and even use of violence and secession, there is a revamp of high-level negotiations.400 This recurring development on the side of the Afrikaners tends to confirm that when “minorities” perceive that their identity interests and autonomy are not sufficiently protected within the state, they threaten to break away.401 It can be argued that a reasonable accommodation of the wishes of the distinctive population groups in a state, respecting the principle of substantive equality and the right to identity for minorities as enshrined in article 27 ICCPR, would provide enough internal self-determination for these population groups, thus preempting calls for and actions of external self-determination. It should, finally, be mentioned that in view of the lack of progress on the official level and the increasing unlikelihood that an “official” Volksstaat will come about, there are some private initiatives regarding the development of a Volksstaat, one of which appears to be rather successful.402 The Afrikaner Vryheidsstichting (AVSTIG) was established in 1988 and bought in 1990 the village Orania, a sparsely populated and underdeveloped territory in the (Orange) Free State,403 as basis for the development of a Volksstaat.404 The newsletter from the Friends of Orania of May 1998 underscored the following developments: “million of rands already invested in Orania,” “Orania as town for the Afrikanervolk is now well established,” “Orania is drawing young people” which is related to the fact of job creation within Orania, further training possibilities, recreation, and Afrikaner schools. Orania residents tend to remain positive that they will be independent one day, despite numerous setbacks and delays in negotiations.405 The following description of Orania as a town for the Afrikaner volk reflects the concerns of many Afrikaners about such issues as job opportunities/affirmative action, the protection and promotion of their language and culture, and the high crime level in South Africa: “The safety and rural atmosphere of the town in the midst of a hard working community, a positive attitude, two schools, cultural activities, recreational facilities and the burning ideal of the freedom of the Afrikaner people is making Orania attractive, not only for people to live in but also for investment.”406 In 2000, Orania objected strongly to its designation by the Demarcation Board, as that would entail that Orania would form a unified municipality with Hopetown and Strydenberg. Consequently, Orania’s community would be in a minority and frustrated in its attempts for independence, allegedly contravening section 235 of the 1996 Constitution.407 A meeting with Provincial and Local Government Minister, Sydney Mufamadi, was scheduled408 for February 2000 but did not lead to a constructive solution entailing that Orania representatives continued to lobby for a meeting with the premier of the Northern Cape, Dipico. In that meeting they stressed that they wanted its concerns over Orania’s municipality status to be

The Implementation and Application Phase

213

addressed prior to the holding of local elections, which were planned for 5 December 2000.409 Eventually, Orania prepared for a court battle to obtain legal certainty about its future status, while negotiations with the government continued so as to possibly resolve Orania’s demands.410 A settlement was reached 3 December 2000, and the Kimberly High Court ruled that the existing local council of the Northern Cape Afrikaner community, Orania, is to remain in place indefinitely despite countrywide municipal elections on 5 December 2000. Until the court case is finalized, the council is to retain all its existing rights and remain in existence as a legal entity for the purposes of further negotiations and litigation. The community of Orania furthermore chose not to cast its ballots in the official poll but held independent elections to vote for seven new town councilors.411 In March 2001, Minister Mufamadi met with Orania representatives for the first time since this court ruling about a permanent solution412 and in June 2001 a committee was set up to examine the feasibility of reviewing the municipal status of Orania as requested by the community. The committee consists of an Orania community leader, a representative of national, the Northern Cape provincial government, two representatives of local government, and a member of the municipal demarcation board. The negotiations are thus still ongoing, and all parties are confident that a solution will be found.413 It remains to be seen how this town will develop, what reaction it will provoke from both the wider public and the authorities, but it sends a strong signal to the state that certain Afrikaners choose to separate instead of integrate and take this kind of action because they feel that their right to identity is not sufficiently protected. CUSTOMARY LAW: INTEGRATION IN THE NATIONAL LEGAL SYSTEM? As the analysis of the constitutional provisions has demonstrated, the 1996 Constitution recognizes customary law as part of the South African legal system but subject to the Constitution, including the Bill of Rights, and “legislation that specifically deals with customary law.”414 Such qualified recognition of customary law arguably amounts to an equally qualified recognition and realization of the right to identity of the various indigenous communities in South Africa. It is, however, not clear what this theoretical position will lead to in practice concerning the actual space carved out for customary law in the national legal system.415 Certain jurisprudential and legislative developments do give indications in this regard. The South African Law Commission finalized its Report on Customary Marriages in 1996, which was followed by the introduction of a Bill on the Recognition of Customary Marriages in September 1998.416 SALC had taken as its point of departure the fact that, whereas some rules should apply to all marriages (like the constitutional requirement of equal treatment), in certain areas the spouses should be free to follow their cultural preferences as guaranteed by sections 30 and 31 of

214

Minority Protection in Post–Apartheid South Africa

the 1996 Constitution.417 A balance should be struck between the values of equality and cultural identity.418 By way of conclusion it can be said that “[a]lhough customary marriages should be recognized on the basis of the constitutional right to culture, it is necessary to distinguish areas where human rights prevail.”419 The Recognition of Customary Marriages Act420 effectively recognizes existing customary marriages, including the polygamous ones, and also future customary marriages as long as they comply with the requirements in the Act.421 The requirements for the validity of customary marriages include an age and consent requirement and demand that the marriages “must be negotiated and entered into or celebrated in accordance with customary law.”422 It should be underscored that the “rules of customary law determine the validity of a customary marriage between persons related to each other by blood or affinity,”423 which is apparently an example of a culturally inspired rule that is acceptable in the new constitutional regime. In view of the complaint that customary law was distorted during apartheid, especially because of the purported codifications, it is equally important that the term customary law for purposes of the Act means “the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples.”424 The Act is quite firm about the equal status of spouses in customary marriages,425 thus “introducing measures which bring customary law in line with the provisions of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), and South Africa’s international obligations.”426 This Act apparently demonstrates a willingness to recognize and respect certain culturally specific features of marriages according to customary law, like polygamy, while holding on to the equality principle within the marital relationship. It remains to be seen, however, whether the indigenous communities will accept it, especially the proclaimed equal status of the wife in a customary marriage.427 Furthermore, it should be underlined at this point that the memorandum to the Recognition of Customary Marriages Bill appears to announce a recognition of Muslim and other religious marriages in the near future as it reads: “The Bill lays the foundation for a uniform code of marriage law that will be applicable to all South Africans. It provides a structure compatible with the future recognition of religious and other forms of marriages.”428 The recognition of Muslim marriages would be highly appropriate in view of the current plight of wives and children from Muslim marriages and would at the same time amount to an important step for the integration of Muslim personal law into the general legal system. It is, however, not guaranteed that the Muslim communities would accept the “equal status of the wife” clause. SALC has also finalized its report on one of the other issues in its project on Customary Law,429 namely the one dealing with Conflicts of Law. However, this report is still under consideration by the Department of Justice and Constitutional Development. In its report of April 1998,430 it is underscored that the 1988 Law of Evidence Amendment Act431 does no more than oblige the courts to take judicial notice of customary law, which is a rule of recognition and not really of

The Implementation and Application Phase

215

choice of law. The application of customary law is thus still a matter of judicial discretion, albeit constrained by the repugnancy proviso432 and the requirement that the law should be “ascertained readily and with sufficient certainty.”433 The Commission calls for more exact guidance as to choice of law434 and postulates in this regard that constitutional norms should now directly enter the choice of law process to determine the selection of an applicable law.435 According to the Commission the new constitutional dispensation implies that “customary law is at last achieving recognition as one of the foundations of the South African legal system.”436 On the one hand, sections 30 and 31 would mean that “the state has a duty to allow people to participate in the culture they choose, and implicit in this duty is a responsibility to uphold the institution on which that culture is based.”437 On the other hand, section 211(3) is said to imply that “any legal relationship governed by customary law is subject to the Bill of Rights,”438 which is problematic in view of the patriarchal tradition of African society and the equality clause in that Bill of Rights.439 Eventually and by way of compromise, the Commission recommends that the guiding principles for the discretion of the courts concerning the application of customary law should be that the parties are free to choose the applicable law, provided their choice does not infringe the rights acquired by others, while the residual power to decide which law to apply lies with the court.440 It remains to be seen whether the eventual piece of legislation will follow these recommendations and what picture regarding accommodation of customary law and values will emerge from further implementation and application. A Discussion Paper on the Administration of Estates was published in December 2000 and evaluates the different systems of administration of estates historically reserved for different population groups. The purpose of this review is to consider a unitary system of administration of estates for all South Africans.441 The Constitutional Court has taken this work-in-progress into account in its judgement in the Moseneke and others v Master of the High Court and has consequently urged this work and the subsequent legislative process to be completed within a period of two years by suspending the order of invalidity of the current provisions for two years, while providing for a temporary measure that does not discriminate on the basis of race in the meantime.442 An issue paper on succession in customary law was published for comment in April 1998 and a discussion paper (including a draft bill) in August 2000. Prior to the publication of the discussion paper, the Department of Justice had introduced a bill in Parliament that subsequently had to be withdrawn as it proved too contentious. As the discussion of certain case law will reveal, the issue of gender discrimination, in that the rule of male primogeniture prevents women from inheriting upon intestacy, also makes this matter very sensitive. It is unfortunate, therefore, that SALC’s project leader resigned, stalling the developments in this respect.443 Although there has not yet been a Constitutional Court judgement that deals with customary law and its validity under the new Constitution, the case law of the lower courts since 1994 indicates that the courts are convinced that they should apply customary law444 but only to the extent that it is in compliance with the Bill

216

Minority Protection in Post–Apartheid South Africa

of Rights.445 The theoretical position is aptly formulated by Le Roux J in Mthembu v Letsela and Another: “There is much to be said for the view that customary law has been accepted by the framers of the Constitution as a separate legal and cultural system which may be freely chosen by persons desiring to do so by virtue of § 31 of the Constitution . . . Section 181(1) continues the enforcement of indigenous law by traditional authorities. There are indications, however, that these rules have to be measured against the fundamental rights found in chapter 3 and may not be opposed to the principles of public policy or natural justice.”446 The further, actual implementation of these principles indicates a tendency to take the complete picture regarding customary obligations into account to judge (inter alia) compliance with the equality clause of the Bill of Rights. Regarding the rule of male primogeniture for succession purposes, it was, for example, taken into account in Mthembu v Letsela and Another, that “the devolution of the deceased’s property onto the male heir involves a concomitant duty of support and protection of the woman or women to whom he was married by customary law and of the children procreated under that system and belonging to a particular house.”447 Consequently, the court held that “even if this rule is prima facie discriminatory on the grounds of sex or gender and the presumption contained in section 8(4) (IC) comes into operation, this presumption has been refuted by the concomitant duty of support . . . Should the counter-balance of the right to support fall away, however, the whole matter assumes a different aspect.”448 The decision of the Supreme Court in this case also underlined the difficult task of trying to reconcile the need to honor the Bill of Rights by removing laws that discriminate against women in matters of inheritance on the one hand and the recognition of customary law in the same constitution as part of the law of the land on the other.449 The case law is not uniform in its approach, and a constitutional court judgement or further legislative guidelines would thus be appropriate and would provide a more solid basis upon which to evaluate the South African post-apartheid position on the status of customary law. Overall, there seems to be a genuine attempt by the South African postapartheid regime to accommodate indigenous communities and their divergent cultural values and identities, while protecting the fundamental human rights and freedoms enshrined in the Bill of Rights. However, certain policy developments are hampered by undue delays, which call into question the actual commitment to address the issues involved. In any event, only the actual implementation of the principles discussed here, over a longer period of time, will provide a sufficient basis for the evaluation of the policy. TRADITIONAL LEADERS: THEIR STATUS IN POST-APARTHEID SOUTH AFRICA Although the relevant constitutional provisions create a negative impression about the degree of accommodation of the institution of traditional leaders (amakhosi), which is still relevant to most indigenous communities in South

The Implementation and Application Phase

217

Africa, the subsequent developments result in a more ambivalent picture. Several bodies have been established since 1994, and this extensive degree of institutional support seems to reveal a genuine attempt to integrate that institution into the democratic state structure. Nevertheless, these bodies are all relatively young, and it is thus difficult to deduce whether they create an effective avenue for the traditional leaders to participate in governance regarding issues relevant to their territory and customary law. Furthermore, there is an extensive delay in policy development regarding traditional leaders in the constitutional dispensation, which arguably indicates a reluctance to actually deal with the sensitive issues involved. Certain remarks on the Remuneration of Public Office Bearers Act, No 20 of 1998, are also called for as they contribute to the overall picture of the position of traditional leaders in the South African state. The fact that traditional leaders are explicitly included among the public office bearers who receive a salary from the state450 is important, in that it acknowledges that they are part of the state structure. However, the Act identifies traditional leaders not as persons recognized as legitimate by the local communities but as “a person identified by the Minister after consultation with the Premier concerned by notice in the Gazette for the purposes of this Act.”451 This degree of discretion for the Minister of Justice and Constitutional Development diminishes the degree of recognition realized by this Act. In this respect, it should also be pointed out that traditional leaders are excluded from both pensions and medical aid,452 whereas the Act leaves discretion to the President to determine “any benefits” which traditional leaders are entitled to.453 Soon after the 1996 Constitution took effect (4 February 1997), three national bodies were established to deal with traditional leaders, more specifically a Chief Directorate on Traditional Affairs in the Department of Constitutional Development (now the Department of Justice and Constitutional Development), a MINMEC on traditional affairs (February 1997) and the (national) Council of Traditional Leaders (April 1997). The Chief Directorate on Traditional Affairs is itself subdivided into three directorates: one on remuneration and capacity building of traditional leaders, one on traditional leadership and institutions, and one on anthropology. Some of the overall functions of the Chief Directorate are to assist “with the process of incorporation of traditional communities into the democratic society” and “to promote traditional leadership, institutions and customary law in a democratic state.”454 This initiative is indicative of a commitment in principle to integrate traditional leadership to some extent in post-apartheid South Africa. Furthermore, the Chief Directorate is developing several strategies to realize this principle. It is not only in the process of developing a White Paper on Traditional Leaders455 as basis for legislation in that regard, but it has also been instrumental in the establishment of the National Griqua Forum456 to form a basis for the consultation with the Griqua about the status they want—as traditional community or as community in the sense of sections 31 and 185, 1996 Constitution.457 In May 1998 the Chief Directorate organized a national conference on

218

Minority Protection in Post–Apartheid South Africa

the Constitutional Accommodation of Vulnerable Indigenous Communities in South Africa with a focus on the Nama, San, and Koranna groups.458 The resolution taken at that conference includes a commitment to “address the aspirations of these indigenous communities . . . (and) explore the establishment of structures or a single structure to address the needs and interests of the indigenous communities represented at the Conference.”459 Another sign of an attempt at (national) government level to integrate and accommodate the traditional communities and their leaders can be found in the Local Government White Paper and the ensuing Local Government: Municipal Structures Act, No 117 of 1998.460 Minister Moosa (then Minister of Constitutional Development) underscored at the official launch of that White Paper that it reflects a consensus that had been reached after extensive discussions with traditional leaders on a cooperative model for rural governance in which traditional leaders would work with and be represented on local councils. It should furthermore be highlighted that there is explicit allowance for provincial variations to be attuned to specific regional circumstances,461 another important feature of an adequate system of minority protection. The Local Government Municipal Structures Act embodies these options of the White Paper and more specifically in part 6 entitled “Participation of traditional leaders in Municipal Councils.”462 “Traditional authorities that traditionally observe a system of customary law in the area of a district or local municipality” are allowed to attend and participate in meetings of municipal councils.463 Although it is required that “before a municipal council takes a decision on any matter directly affecting the area of a traditional authority, the council must give the leader of that authority the opportunity to express a view on that matter,”464 it is not clear whether the traditional leaders have a right to vote on the (relevant) decisions. Only the further implementation of the Act will reveal to what extent the traditional leaders have co-determination powers concerning issues of relevance to them and their authority. SALC also published a discussion paper on the judicial powers of traditional leaders in May 1999. However, the compilation of the final report on this matter has been held back due to the resignation of the researcher and the delay appointing a new person. As a result, the final report is not yet available mid-2001.465 The Discussion Paper contained certain interesting recommendations, like the maintenance of traditional courts where they already existed, the recognition of these courts as courts of law with the concomitant status, and the training and appointment of paralegals in customary law and the bill of rights to assist these traditional courts.466 It will be interesting to see how the policy development will be in this regard and what type of legislation will ensue. It cannot be denied that in mid-2001 the White Paper on Traditional Leaders was still not finalized and that there have been several signs of unrest among traditional leaders concerning their powers at local government level. Since the end of 2000, the amakhosi have been complaining that the new municipal dispensation would erode their authority and autonomy in traditional areas. There have

The Implementation and Application Phase

219

been several complaints since that government is arguably deliberately delaying an adequate response and resolution of the problem.467 The MINMEC on Traditional Affairs consists of the national Minister of Constitutional Development and the MECs (member of executive council of a province) of the six provinces where a provincial house of traditional leaders is established468 and is meant to be a political discussion forum to coordinate policy and action in the field of traditional affairs469 Arguably, the establishment of such a coordinating body also demonstrates that public authorities in South Africa are serious about their policy regarding traditional affairs and leaders. Nevertheless, in itself such coordination does not guarantee anything regarding the substance of the policy, which will only be revealed in further policy decisions, like the White Paper on Traditional Leaders. Finally, the establishment of the Council of Traditional Leaders,470 now renamed National House of Traditional Leaders,471 has a significant symbolic value although its functions are mainly advisory.472 Then Minister of Constitutional Development (Moosa) underscored during the parliamentary debates on the bill that it “provides the platform for traditional leaders to become personally involved in the promotion of the role of traditional leadership within a democratic constitutional dispensation”473 and that “[a]s an advisory body, the Council will assist the government in shaping the role of traditional leaders, institutions and customary law in the context of a democratic state.”474 Then President Mandela, at the inauguration of the Council, 18 April 1996, postulated that the National Council is meant to ensure complementarity rather than competition between elected and traditional authorities and should also address unity across ethnic lines (following the practice of the provincial houses). In view of the merely advisory role of the Council, it is within the discretion of the national government and legislature whether and to what extent such advice is taken into account. Consequently, future practices in this regard will reveal the actual accommodation of the institution of traditional authorities in post-apartheid, democratic South Africa. The Congress of Traditional Leaders of South Africa (Contralesa) is in general rather critical about the policy as developed up until now regarding the status of traditional leadership, and they bargain for more powers for the traditional authorities at national, provincial, and local levels.475 The recognition of the status and powers of traditional leaders would, to the extent it materializes, amount to a measure of minority protection that involves a degree of self-governance and would also qualify as a measure of internal selfdetermination for the various indigenous communities involved. The extent to which the apparent accommodation of this feature of South Africa’s population diversity is genuine and not mere window dressing, cannot be evaluated yet. POLICY AND PRACTICE REGARDING CULTURE As is the case for language matters, the accommodation of ethnic/cultural diversity as devised by the National Department of Arts, Culture, Science and

220

Minority Protection in Post–Apartheid South Africa

Technology (DACST) is not approached in explicit “minority” terms but rather in terms of the “unity in diversity” and multiculturalism themes and also in terms of the need to redress disadvantages from the past.476 The several developments regarding cultural policy—including issues of heritage and media regulation— emphasize the need for the cultural (ethnic), linguistic, and religious diversity of the entire South African population to be represented in the various cultural expression forms. If these policy decisions will be reflected in actual practice, which is ongoing and sufficiently flexible to take into account the specific circumstances of the various population groups, it would amount to a significant contribution to the overall accommodation of the country’s population diversity by facilitating integration without assimilation, inclusiveness, and thus also nation building. It seems appropriate to give a brief overview of several initiatives of DACST that underscore its multicultural approach and the apparent understanding of the potential of such an approach for nation building. Regarding science and technology, DACST wants to promote and affirm indigenous cultural, intellectual, scientific, and technological knowledge.477 The National Heritage Bill, which was subsequently subdivided in two, the National Heritage Council Act and the National Heritage Resources Act,478 is meant to establish an integrated and holistic heritage structure to coordinate the expression of and access to the living heritage of all South Africans. The importance of this development is highlighted by the remark that “our heritage helps us define our cultural and national identity.”479 South African museums are currently being restructured so that “they reflect in every way the collective heritage, the new identity and the ethos of a multi-cultural, democratic South Africa.”480 An important component of the overall DACST program is the Legacy Project: “The expression of multi-culturalism through monuments, museums and plaques, as well as through festivals employing arts to commemorate what is meaningful to our communities, has a profound potential to unite, build and revitalize our nation. The Legacy Project is designed specifically to redress the current imbalances with regard to the representation, memorialisation and commemoration of South African history and culture.”481 Finally, and in view of the need to redress the imbalances and disadvantages suffered by the various nonwhite population groups under apartheid, DACST is contributing to the establishment of community arts centers throughout the country.482 Regarding media, it needs to be mentioned that the Independent Broadcasting Authority (IBA) was already established in the run up to the 1994 elections,483 and its mandate clearly reflects a concern to protect and promote the country’s population diversity. The IBA is meant to “promote the provision of a diverse range of sound and television broadcasting services on a national, regional and local level which, when viewed collectively, cater for all language and cultural groups”484 and to “ensure that, in the provision of public broadcasting services (i) the needs of language, cultural and religious groups . . . are duly taken into

The Implementation and Application Phase

221

account.”485 The IBA powers and functions that can be targeted to these goals include licensing of broadcasters, monitoring license and program conditions, and formulating broadcast policy.486 The principles that are being developed in the domain of culture and media appear promising because of the strong emphasis on the diversity pole of “unity in diversity” and thus also, albeit implicitly, on the right to identity of the various population groups of South Africa. Since the scope of this work does not allow an in-depth analysis of actual practice, it suffices to mention that actual practice especially regarding media is not always that positive, which is exemplified by the numerous complaints against the public broadcaster SABC.487 FEDERALISM Mentioned as a possible implementation of the right to internal selfdetermination, federalism would also have positive implications for minority protection as a means of bringing government closer to the people. In the latter regard it is especially relevant to the population groups that are territorially concentrated. In view of the fact that several ethnic and racial population groups in South Africa have relative territorial concentrations in the provinces, the development of the quasi-federal structure of state and the relative autonomy of provinces and local government has potential to contribute to the accommodation of population diversity and is in that respect also relevant for the evaluation of the extent to which post-apartheid South Africa accommodates its population diversity.488 The overall perception is that the provinces are not functioning well because there is a lack of capacity in the administration489 and also that the three-tier system is too expensive. It was even suggested that the ANC would de facto be working towards a two-tier system, namely national and local government, converting the provincial level into an executive arm of the central level.490 In this respect and regarding the autonomy principle of federalism, it should be underlined that the seven ANC-dominated provinces chose not to have their own constitution491 and that the national level of the ANC attempts to control the provincial governments and their composition and functioning.492 Certain national initiatives could furthermore be construed as attempts to curtail provincial autonomy.493 The attempt of the ANC to remove the power to call provincial elections from the provincial premier and give it to the President also caused a lot of contention.494 The two non-ANC provinces, Kwazulu-Natal and the Western Cape, demonstrate that it is constitutionally possible to have a certain, albeit limited, degree of provincial autonomy regarding certain identity-related matters through the formulation of a provincial constitution and the exercise of the exclusive and concurrent provincial competencies.495 It is interesting to observe that, in furtherance of its long-held constitutional views, the IFP submitted towards the end of 1998 constitutional amendments, which were (inter alia) geared towards strengthening provincial autonomy. These

222

Minority Protection in Post–Apartheid South Africa

proposed amendments would enhance the role of provincial constitutions, increase the list of concurrent competencies, and transfer some to the list of exclusive provincial competencies.496 However, nothing came of these amendments. Regarding the participation principle of federalism, it can be pointed out that President Mbeki underlined that “it appeared that provinces were not using the opportunities the NCOP offered them to participate in national policy formulation.”497 Since 1998 there has been effectively a ten-member delegation of local government representatives in the NCOP who will be able to participate in all NCOP debates on matters affecting local government.498 In this way, there is potential for local government’s position to be adequately represented and its concerns to be voiced at national government level.499 This could in turn contribute to bringing government closer to the people and entail legislation that allows municipalities to determine certain identity-related matters themselves. Finally, local government is in the process of being completely rationalized, restructured, and transformed, inter alia to counter the racial segregation at local level resulting from apartheid500 and to give local government a more developmental role. The local government powers envisaged by the Constitution501 are mainly dealing with infrastructure and not so much with identity-related matters, and the 1998 White Paper on Local Government as well as the Act implementing its principles, namely the 1998 Local Government Municipal Structures Act, does not suggest that this should be altered.502 It is, in any event, impossible to predict with any accuracy how local and provincial government will develop, what degree of real autonomy they will have to contribute to the accommodation of the relevant population diversity, and in what way the relative territorial concentrations of population groups will de facto be reflected in provincial policymaking.503

POWER SHARING The most obvious feature of power sharing of the 1993 Constitution, namely the government of national unity (GNU), is no longer constitutionally entrenched in the 1996 Constitution. Although the NP stepped out of the GNU before the 1999 elections, there were talks between the IFP and the ANC to continue with some kind of coalition government, both for the national sphere of government and in the province of Kwazulu-Natal.504 Furthermore, there are certain constitutional provisions that are aimed at multiparty democracy and thus indirectly at power sharing. Since there is a certain degree of racial and ethnic voting in South Africa, provisions aimed at securing participation of minority political parties in the proceedings of the national and provincial legislatures505 have potential to contribute to minority protection.506 In view of the focus of this work, it is relevant to point out that forms and systems of power sharing can be regarded as implementations of the right to internal self-determination.

The Implementation and Application Phase

223

EVALUATION OF THE VARIOUS CONSTITUTIONAL IMPLEMENTATION POLICIES AS REGARDS ACCOMMODATION OF POPULATION DIVERSITY AND MINORITY PROTECTION Before actually evaluating the impact of official policies, it should be mentioned that South Africa has a long way to go to overcome the divisive impact of apartheid and its enduring legacy of racial stereotypical thinking. Racial clashes and allegations of racism as well as stereotypical racist remarks are rife, as is exemplified by the recurring racial tensions at educational institutions,507 allegations of racism in the police,508 and hate speech problems in Parliament—including the problematic feature that the ANC often counters criticism by classifying it as racist.509,510 The South African Human Rights Commission has also conducted several investigations pertaining to racism in schools, in the police, in the media,511 and in certain towns512 some of which resulted in huge reports.513 The analysis of the various policy domains of relevance for minority protection has first of all and mainly revealed that the actual practice and the implementation of the constitutional provisions and principles is still in full process and that South Africa is a country characterized by major transformation. Furthermore, several deficiencies of practice and implementation have been pointed out, inter alia related to excessive delays in developing implementation strategies and standards and to huge disparities between theory and practice. Several implementation policies seem to confirm that South Africa has chosen different avenues to approach its population diversity, some more closely related to human rights,514 others to minority rights and multiculturalism, and still others to (internal) self-determination. However, the overall picture that emerges from the evaluation of the further development and implementation of the distinctive policies is rather ambivalent. The implementation policies and measures show a more nuanced, and in some respects more diluted, attitude regarding concerns of minority protection and accommodation of population diversity.515 Often the focus is rather on the unity pole of the “unity in diversity” theme, which is related to the important goal of nation building in post-apartheid South Africa, and this is definitely the case for the highly sensitive debate concerning “minority” rights and the section 185 Commission. Sometimes there is undue delay in the development of the policy, as for the Muslim Personal Law Project, or even a strong reluctance to allow the materialization of a certain mode of implementation, like the Volksstaat. In view of these developments, it seems a legitimate question to ask what is going to happen with the diversity pole and thus, the accommodation of population diversity and minority protection.516 The actual practice regarding multi-lingualism and the concomitant accommodation of (several) linguistic minorities is rather deficient. The strong institutional support for and focus on the issue of traditional leaders gives, however, a more positive signal, but it cannot be denied that the recognition and protection of that institution is qualified. The policies concerning

224

Minority Protection in Post–Apartheid South Africa

education, culture, and media are even more difficult to evaluate as they are still being developed and given shape. Nonetheless, the foundations appear to be solid and in favor of the realization of multi-lingualism and multi-culturalism. There are naturally practical as well as principled limits to the accommodation of population diversity and to minority protection, like the principle of substantive equality and the impact of the general limitations clause of the Bill of Rights. In this respect, it has been clarified through case law and implementing legislation that no population group can ask more than it is entitled to according to the principle of substantive equality. Consequently, Afrikaners would not be able to rely on the minority discourse to try to hold on to privileges from the past, but they are protected by the Bill of Rights and the nondiscrimination provision. The actual degree and shape of minority protection in specific instances should be determined by a balancing process in which all the relevant circumstances are taken into account and which is governed by the principle of substantive equality: affirmative action versus nondiscrimination, protection and promotion of diversity versus the Bill of Rights, and especially the nondiscrimination provision, multi-lingualism and multiculturalism versus scarcity of resources. Some Afrikaners have made strong claims and voiced sharp criticism of current practice in the domains of language, language in education, and affirmative action. However, it is important to point out that several other linguistic and ethnic groups are becoming more vocal and ask protection of their separate identity.517 The minority rights discourse and the relevant constitutional provisions are thus being relied on more generally, and their potential to contribute to minority protection will be clarified through practice and experience over time. It is still too soon to cast definite judgements as the actual implementation and application of several policies is rather new and in process, whereas others might very well be adapted in the near future. The enormous changes South Africa has been and is going through since 1994 should, of course, also be taken into account when formulating an overall evaluation. In view of the history of apartheid and its manifold legacies, there is a focus on national unity and nation building, without, however, denying outright the importance in this respect of an appropriate accommodation of the country’s population diversity.518 The search for the correct and balanced approach is ongoing, and it is hard to predict what the eventual outcome will be on the basis of the first steps. The foundation stones and principles for a successful approach to minority protection seem available,519 but it will be the practice in the coming years that will be decisive.520

NOTES 1. For an overview and analysis of the case law of the South African Constitutional Court, see the articles and case notes in South African Journal of Human Rights 1996, part 1, entitled “Focus on the Constitutional Court 1995 Term”; A. Cockrell, “Rainbow Jurisprudence,” South African Journal of Human Rights 1996, 1–38; the articles and case notes in South African Journal of Human Rights 1997, 1998 and 1999, part 2,

The Implementation and Application Phase

2.

3.

4.

5.

6.

7.

8. 9. 10.

225

entitled “Focus on the Constitutional Court,” for respectively the 1996 term, the 1997 term and the 1998 term; the articles and case notes in South African Journal of Human Rights 2000, part 2 (not exclusively dedicated to the Constitutional jurisprudence); K. Henrard, “Het Grondwettelijk Hof van Zuid-Afrika: Samenstelling, Procedure en Belangrijke Ontwikkelingen in de Jurisprudentie,” Tijdschrift voor Bestuurswetenschappen en Publiek Recht 1998, 856–863. The National Coalition for Gay and Lesbian Equality and Another v The Minister of Justice and Others, Constitutional Court of South Africa, CCT 11/98, 9 October 1998, 1998 (12) BCLR 1517 (CC), § 15 (hereinafter: The Gay Case, CC). A case on affirmative action before a lower court will be discussed later. It deals with the implementation of the affirmative action policy by the Department of Justice, which is being challenged as amounting to unfair discrimination. As Sachs J states in his concurrent opinion in the Gay Case: “Equality therefore does not imply a leveling or homogenization of behavior but an acknowledgement and acceptance of difference. At the very least, it affirms that difference should not be the basis for exclusion, marginalisation, stigma and punishment.” (The Gay Case, CC, § 132). It is important to mention that the rest of the judges expressed agreement with the sentiments expressed in Sachs J’s opinion (at § 78). See also P. de Vos, “Equality for All? A Critical Analysis of the Equality Jurisprudence of the Constitutional Court,” Tydskrif vir Hedendaagse Romeins—Hollandse Reg 2000, 66–68; W. Freedman, “Formal versus Substantive Equality and the Jurisprudence of the Constitutional Court—National Coalition for Gay and Lesbian Equality v Minister of Justice,” Tydskrif vir Hedendaagse Romeins-Hollandse Reg 2000, 314 and 319. In the Gay Case of 9 October 1998 the Constitutional Court confirmed its previous equality jurisprudence as summarized in the landmark judgement on equality (at § 17) and explicitly states that the Constitution has a substantive vision of equality. Prinsloo v Van der linde and Another, Constitutional Court of South Africa, CCT 4/96, 18 April 1997, 1997 (3) SA 1012 (CC), 1997 (6) BCLR 759 (CC) (hereinafter: Prinsloo, CC, §). The claimants argued that section 84 of the Forrest Act 122 of 1984 is unconstitutional as it violates section 8 of the 1993 Constitution. Section 84 of that Act contains a presumption of negligence as regards veld, forest, and mountain fires on land outside a fire control area. Two differentiations on the basis of that clause are challenged in that they would violated both the first and second subsection of section 8, 1993 Constitution. The differentiations at issue are firstly the difference in treatment between defenders in veld fire cases and defenders in other criminal cases, and secondly the fact that the presumption of negligence would only apply to non-fire-control areas. President of the Republic of South Africa and Another v Hugo, Constitutional Court of South Africa, CCT 11/96, 18 April 1997, 1997 (4) SA 1 (CC), 1997 (6) BCLR 708 (CC) (hereinafter: Hugo, CC, §). Hugo concerns the validity of Presidential Act No 17 in which certain categories of prisoners get absolution. One of the categories is “all mothers in prison on 10 May 1994 with minor children under the age of 12.” Hugo is a male prisoner with a child under the age of 12, and he alleges that this difference in treatment would violate the prohibition of discrimination on the basis of gender in article 8, 1993 Constitution. Prinsloo, CC, § 25. Prinsloo, CC, §§ 26–27 and 41. T. Loenen, “The Equality Clause in the South African Constitution: Some Remarks from a Comparative Perspective,” South African Journal of Human Rights 1997, 408.

226

Minority Protection in Post–Apartheid South Africa

11. Ibid. 12. Prinsloo, CC, § 27. 13. Prinsloo, CC, § 31. See also C. Ngwena, “HIV in the Workplace: Protecting Rights to Equality and Privacy,” South African Journal of Human Rights 1999, 520. 14. Hugo, CC, § 33. 15. Hugo, CC, § 41. For the emphasis on human dignity as a central aspect of discrimination or, in South African terms, “unfair discrimination” is relied on a dissenting opinion of Justice L’Heureux-Dubé of the Canadian Supreme Court in Egan v Canada (1995, 29 CRR (2d), (79) 104–105). 16. Hugo, CC, § 43. 17. Harksen v Lane NO and Others, Constitutional Court of South Africa, CCT 9/97, 7 October 1997, 1998 (1) SA 300 (CC), 1997 (11) BCLR 1489 (CC) (hereinafter: Harksen, CC, §). Three sections of the Insolvency Act 24 of 1936 are challenged as violating section 8 in its first and second subsection because these provisions would imply an unequal treatment of solvent spouses in comparison with other persons having a relation with the insolvent person. For a critical assessment of this case, see A.J. Van Der Walt & H. Botha, “Coming to Grips with the New Constitutional Order: Critical Comments on Harksen v Lane NO,” SA Public Law 1998, 17–41. See also I.M. Rautenbach, “Die Konstitutionele Hof se Riglyne vir die Toepassing van die Reg op Gelykheid,” Tydskrif vir die Suid-Afrikaanse Reg 1998, 318. 18. Hoffmann v South African Airways, Constitutional Court of South Africa, CCT 17/00, 28 September 2000, 2001 (1) SA 1 (CC), 2000 (11) BCLR 1235 (CC) (hereinafter: Hoffmann v SAA, CC, §). 19. Harksen, CC, § 50; Hoffmann v SAA, CC, § 27. 20. It seems to follow the equality memorandum dd. 29 September 1997 made by the researchers of the justices of the Constitutional Court. That memo is primarily based on an analysis of Hugo and Prinsloo (received via e-mail from one of the researchers working there at that moment—on file with the author). 21. Harksen, CC, § 51. 22. Harksen, CC, § 52. The memo of the researchers also suggested this third stage of analysis of which was argued that it (s 33 analysis) focuses on the government side whereas the unfairness inquiry of s 8 (2) of the 1993 Constitution would focus on the rights holder. 23. Harksen, CC, § 53. 24. For a more recent confirmation of this jurisprudence, see the Gay Case, CC, § 17 and Hoffmann v SAA, CC, § 24. 25. See inter alia the jurisprudence of the ECHR regarding article 14 ECHR as set out in (inter alia) P. Van Dijk & G.J.H. Van Hoof, Theory and Practice of the European Convention on Human Rights, Kluwer, The Hague, 1998, 718–728. 26. The City Council of Pretoria v Walker, Constitutional Court of South Africa, CCT 8/97, 17 February 1998, 1998 (2) SA 363 (CC), 1998 (3) BCLR 297 (CC) (hereinafter: Walker, CC, § . . . ). 27. Contra the strong affirmation of the Harksen principles in the Gay case, CC, § 17 and Hoffmann v SAA, CC, § 24. 28. Walker, CC, § 28. 29. Walker, CC, §§ 32. 30. Walker, CC, §§ 35–36. 31. Walker, CC, §§ 46, 47.

The Implementation and Application Phase

32. 33. 34. 35. 36.

37. 38. 39. 40.

41. 42. 43.

44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55.

227

Walker, CC, § 46. Walker, CC, § 48. Walker, CC, § 73. Walker, CC, § 81. For another kind of balance which is required in the new constitutional dispensation, see The Premier of the Province of Mpumalanga and Another v Executive Committee of the Association of Governing Bodies of State-Aided Schools—Eastern Transvaal, Constitutional Court of South Africa, CCT 10/98, 2 December 1998, 1999 (2) BCLR 151 (CC), § 44. Walker, CC, § 113. Walker, CC, § 109. Walker, CC, § 132. For analogous critical remarks on the two-leg analysis of unfair discrimination, see A. Fagan, “Dignity and Unfair Discrimination: A Value Misplaced and a Right Misunderstood,” South African Journal of Human Rights 1998, 225, 228, 232; I. Rautenbach, “Die Konstitutionele Hof se Riglyne vir die Toepassing van die Reg op Gelykheid,” 322–325. See also S. Jagwanth, “What Is the Difference? Group Categorisation in Pretoria City Council v Walker 1998 (2) SA 363 (CC),” South African Journal of Human Rights 1999, 203–206. It should be underlined that the Constitution’s focus on substantive equality has been made explicit in the Gay Case, CC, §§ 60–62. Contra the perception created by the Gay Case since the latter case explicitly endorses the Harksen equality analysis/approach. The Constitutional Court had already specified in the Gay Case (§ 18) that the rationality test—normally the first test to be applied—does not inevitably precede the unfair discrimination test and that the “rational connection inquiry would be clearly unnecessary in a case in which a court holds that the discrimination is unfair and unjustifiable.” It follows this line of thinking in this case as well, at § 26. Furthermore, regarding the evaluation of the unfairness of the discrimination the Court goes into the several considerations determining unfairness before and eventually without deciding whether the appellant was discriminated against on a listed ground of disability or on an unlisted ground (§ 40). This seems to be a reversal of the usual equality inquiry. Hoffmann v SAA, CC, § 28. Hoffmann v SAA, CC, § 32. Hoffmann v SAA, CC, § 34. Hoffmann v SAA, CC, § 35. Hoffmann v SAA, CC, § 40. Since there is no question of a law of general application, the third enquiry, namely whether a violation was justified, does not arise (ibid., § 41). Moseneke and Others v Master of the High Court, Constitutional Court of South Africa, CCT 51/00, 6 December 2000 (hereinafter: Moseneke, CC, §). Moseneke, CC, § 1. Moseneke, CC, § 4. Moseneke, CC, § 22. Ibid. Moseneke, CC, § 23. Moseneke, CC, § 24. The Court then goes on to determine a just and equitable order, postponing the actual invalidity with two years so as to give Parliament a chance to devise a balanced reform of the law of succession.

228

Minority Protection in Post–Apartheid South Africa

56. See inter alia regarding the affirmative policies in the army and the public service X, “FF Concerned at Discrimination in Army Rationalisation,” [www.anc.org.za/cgibin/shownews], 13 November 1998; X, “No Discrimination in Public Service,” [www.anc.org.za/cgi-bin/shownews], 5 November 1998. 57. Public Servants Association of SA and Others v Minister of Justice and Others, Transvaal Provincial Division of the High Court, 23975/95, 3 April 1997, 1997 (3) SA 925 (hereinafter: Public Service Case). 58. Public Service Case, 979 C. 59. Public Service Case, 980 C. 60. Section 212 (2)(b), 1993 Constitution. 61. Public Service Case, 988 I. 62. Public Service Case, 994–995 JAB. 63. See also J. Van Den Vyver, “Gelykberegtiging,” Tydskrif vir Hedendaagse RomeinsHollandse Reg 1998, 389–390, who argues that in South Africa the strict scrutiny test should not be used in cases concerning affirmative action, because the Constitution makes explicit provision for affirmative action. 64. X, “South Africa Set for Anti-Discrimination Legislation,” [www.anc.org.za/cgibin/shownews], 27 January 1999. 65. Discussion Document III, received from the Equality Legislation Drafting Unit regularly underlines that the Constitution enshrines a substantive vision on equality. It is, consequently, argued that “the adoption of a substantive approach to equality, rather than a merely formal one, is essential for legislation and other measures on equality to succeed in South Africa” (Equality Legislation Drafting Unit, Discussion Document III, Johannesburg, Equality Legislation Drafting Unit, 24 July 1998, 11). Discussion Document IV (Johannesburg, 30 May 1998) includes a first outline of a structure and draft of the Prohibition of Unfair Discrimination Bill. That Bill takes the group dimension of discrimination into account and also gives special attention to those domains of life, which are felt to be extremely important in that regard, like education, housing, and health. Regarding the envisaged scope of the legislation it is furthermore argued, “[F]urther attention should be given to the possibility of positive measures to prevent or to prohibit unfair discrimination, and to otherwise enhance substantive equality, short of attempting to prescribe affirmative action and other policies for specialised and detailed spheres” (at 28). 66. Section 23(1), Schedule 6, “Transitional Arrangements,” 1996 Constitution. 67. See inter alia X, “R 50 Million Needed to Implement Equality Bill,” [www. anc.org.za/cgi-bin/shownews], 29 October 1999; X, “Equality Law Maker warns against Scare Tactics,” [www.anc.org.za/cgi-bin/shownews], 5 November 1999; X, “Equality Bill will Seriously Damage Economy: BSA,” [www.anc.org.za/cgibin/shownews], 24 November 1999; X, “Equality Legislation Comes under Fire,” [www.anc.org.za/cgi-bin/shownews], 24 November 1999. 68. X, “ANC Drops Sectoral Approach to Equality Bill,” [www.anc.org.za/cgi-bin/ shownews], 20 January 2001. 69. See the ultimate paragraph of the preamble of the Equality Act. 70. Promotion of Equality and Prevention of Unfair Discrimination Act, Article 1 (viii). It is also interesting to notice that the prohibited ground of discrimination “nationality” is defined rather broadly so as to mean “ethnic or national origin” (article 1 (xvi)). 71. Promotion of Equality and Prevention of Unfair Discrimination Act, Article 1 (xxii)(b).

The Implementation and Application Phase

229

72. Section 9 of the 1996 Constitution provides for both vertical and horizontal applicability of the prohibition of discrimination but does not do the same for the other dimensions of the equality principle. 73. M. Pieterse investigates in this respect the potential impact of section 8 of the Equality Act on the recognition and application of customary law and raises critical issues visa-vis ` the apparent outlawing of the entire system of customary succession and the potential endangering of the existence of several central practices to customary family law as lobolo: “The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000: Final Blow to the Customary Law Coffin?” South African Law Journal 2000, 627–635. See, for a similar focus not centered around the Equality Act: W. Van der Meide, “Gender Equality versus Right to Culture: Debunking the Perceived Conflicts Preventing the Reform of the Marital Property Regime of the ‘Official Version’ of Customary Law,” South African Law Journal 1999, 100–112. 74. Section 16 (1)(a). The Minister may designate a magistrate, additional magistrate, or judge as presiding officer of the equality court, after consultation with the Judge President or the head of an administrative unit (section 16 (1)(b)). Professor Gutto of the University of Witwatersrand, special advisor on equality legislation of the department of justice and constitutional development, estimates that the latter regulation does not impinge on the independence of the judiciary: X, “SA’s Equality Law to Be Finally Implemented,” [www.anc.org.za/cgi-bin/shownews], 2 August 2000. 75. See also N. Bohler, who raises the interesting possibility for these equality courts, when dealing with customary law gender discrimination cases, to serve as a forum for hearing the different voices of marginalized people affected by customary law practices: “Equality Court: Introducing the Possibility of Listening to Different Voices in South Africa,” Tydskrif vir die Hedendaagse Romeins-Hollandse Reg 2000, 288–294. 76. X, “SA’s Equality Law to Be Finally Implemented,” [www.anc.org.za/cgi-bin/ shownews], 2 August 2000. 77. Section 9 (2), 1996 Constitution: “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.” 78. J. Kentridge, “Equality” in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, Kenwyn, Juta, loose-leaf, 14.37. 79. J. Kentridge, “Equality,” 14.36. See also N. Smith, “Affirmative Action under the New Constitution,” South African Journal of Human Rights 1995, 86. 80. Section 9 (2), 1996 Constitution. 81. Section 195 (1)(i), 1996 Constitution regarding the public service also mentions the need to redress the imbalances of the past. 82. Section 174 (2), 1996 Constitution refers to the need for the judiciary to reflect broadly the racial and gender composition of South Africa as an obligatory consideration when judicial officers are appointed. 83. June 1997 an affirmative action policy for the police was agreed upon by the major parties in the national negotiation forum of the SA Police Service (X, “Major Parties Agree on Police Affirmative Action Policy: SAPU,” [www.anc.org.za/cgi-bin/ shownews], 30 June 1997). Analogous needs and concerns are at issue in this public institution as in the judiciary and the public service, and it goes inevitably hand in hand with a certain tension and criticism: X, “Generals Retreat in the Face of Affirmative Action: NP,” [www.anc.org.za/cgi-bin/shownews], 26 June 1997. See also

230

84.

85.

86. 87.

88. 89.

90. 91.

92. 93.

94.

Minority Protection in Post–Apartheid South Africa

W. Mohele, “ANC Still Can’t Wrest Control of Apartheid’s Organs,” [www.mg.org.za/ mg/news/98oct1/7oc-anc.html], 2–3. Regarding the prosecution’s service, see also X, “Ngucka Beefs up the Prosecution Service,” [www.anc.org.za/cgi-bin/shownews], 28 January 1999. The National Director of Public Prosecutions, Ngucka, remarks that his office is pursuing a vigorous affirmative action policy and that “the legitimacy of the service depends on ensuring that black people are fully represented at all levels of the service.” See inter alia Brown, “Speaking in Tongues: Apartheid and Language in South Africa,” 18: “[C]itizens can be protected from disenfranchisement in two ways that are relevant to education: by extending access to languages of wider communication to all citizens and by extending the use of African languages in public domains.” Cf. Desei, “The Evolution of a Post-Apartheid Language Policy in South Africa: an On-going Site of Struggle,” 19–20; LANGTAG, Towards a National Language Plan for South Africa: Final Report of the Language Plan Task Group, Pretoria, DACST, August 1996, 28–30; Ms. Mkhulisi, Director of the National Language Services, Speech at Multilingualism Conference 7 May 1998 in X (ed.), Hoyozola. Because our Languages Belong to Us All—Report on Multilingualism Conference May 7, 1998, Pretoria, DACST, 1998, 37. See also X, “More Firms Say Affirmative Action Does Not Work: Survey,” [www.anc.org.za/cgi-bin/shownews], 9 October 1998. See inter alia X, “DP Leads the Charge on “Reverse Racism,” [www.mg.co.za/ news/98feb-dp_racism.html]). Cf. Smith, “Affirmative Action under the New Constitution,” 87. Robinson, “Race, Rights and Representation in a Cape Town Magistrate’s Court,” 588. Cf. C. Smith, “The Case for Mbeki-style Africanism,” [www.mg.co.za/mg/ news/97juli/8jul-Africanism.html], 3 where is referred to “a new obsession with race” as a result of affirmative action. A. Sachs, “Affirmative Action and Black Advancement in Business” in C. Adams (ed.), Affirmative Action in a Democratic South Africa, Kenwyn, Juta, 1993, 107. Sachs, “Affirmative Action and Black Advancement in Business,” 119; A. Sachs, “Reflections on Quota” in C. Adams (ed.), Affirmative Action in a Democratic South Africa, Kenwyn, Juta, 1993, 142–143. See inter alia Sachs, Advancing Human Rights in South Africa, 127–128. See inter alia R. Koen, “The Language of Racism and the Criminal Justice System,” South African Journal of Human Rights 1995, 102. There are furthermore regular calls that government must sensitize the judiciary on affirmative action (e.g., related to the implementation of the Employment Equity Act) because the judiciary appeared hesitant to interfere with management discretion: X, “Government Must Sensitize Judiciary on Affirmative Action,” [www.anc.org.za/cgi-bin/shownews], 11 April 2000. X, “Judiciary Needs Visible Transformation: Omar,” [www.anc.org.za/cgi-bin/ shownews], 9 September 1998; X, “Transformation of Judiciary Should Be Expedited, says Omar,” [www.anc.org.za/cgi-bin/shownews], 14 August 1998. See also the case of S v Collier, Cape Town Magistrate’s Court, 25/862/94, 29 November 1994, unreported, where a defendant refused to be tried by a white magistrate and claimed that his constitutional right to a fair trial entitled him to be tried by a magistrate of the same color, which would represent his community. Both the magistrate court and in appeal the Supreme Court rejected this claim. For an analysis of this case

The Implementation and Application Phase

95. 96.

97. 98.

99.

100. 101. 102. 103.

104.

105.

231

with a special focus on the acceptability of this type of racial discourse in postapartheid South Africa, see Robinson, “Race, Rights and Representation in a Cape Town Magistrate’s Court,” 581–601. X, Justice Vision 2000, Cape Town, Ministry of Justice, 1997, 4. X, “Representativity Being Reached in Judiciary: Omar,” [www.anc.org.za/cgibin/shownews], 5 August 1998; X, “African National Congress Briefing on Justice Matters by Minister of Justice Dullah Omar: 24 August 1998,” [www.anc.org.za/ cgi-bin/shownews], 25 August 1998. Cf. M. SAGGOT, “Revolution on the Bench,” [196.2.18.61/mg/news/98oct2/16oc-judiciary.html], 1 where it is pointed out that the Judicial Service Commission signaled that week the end of the old boys’ club on the Bench with the promotion of junior black judges above their senior white colleagues. X, “House Unanimously Supports Extension of Lay Assessors System,” [www.anc.org.za/cgi-bin/shownews], 9 September 1998. X, “African National Congress Briefing on Justice Matters by Minister of Justice Dullah Omar: 24 August 1998,” [www.anc.org.za/cgi-bin/shownews], 25 August 1998. The Minister of Justice is now Penuel Maduna, and the final recommendations of the SALC are with the Department of Justice and Constitutional Development (conversation with employee of SALC). See SALC, Discussion Paper 87: Community Dispute Resolution Structures, Pretoria, October 1999, Summary of Recommendations: “Because community-based dispute-resolution structures serve a useful purpose in meeting the needs of the majority of the South African population for accessible justice, these structures must now be recognised and supported by law.” X, “House Unanimously Supports Extension of Lay Assessors System,” [www.anc.org.za/cgi-bin/shownews], 9 September 1998; X, “African National Congress Briefing on Justice Matters by Minister of Justice Dullah Omar: 24 August 1998,” [www.anc.org.za/cgi-bin/shownews], 25 August 1998. Section 236 (2), 1993 Constitution. See also section 212 (7)(a) and (b) IC regarding pensions and retirement. Section 212 (2)(b), 1993 Constitution. On 27 December 1994 the Public Service Commission adopted Chapter B special and on 3 March 1995, Chapter B VII. Chapter B.VII of the Public Service Staff Code states in 1 (4) that “broadly representative public service is a constitutionally stated objective, whilst affirmative action is the means for achieving the objective.” Annex C 1 to Chapter B.VII of the Public Service Staff Code on Affirmative Action Terminology puts forward “[s]ince the public service serves all South Africans, its staffing composition, sexual orientation, age, disability, religion, beliefs, culture and language.” It furthermore argues that “[t]he Constitution makes reference to ‘persons disadvantaged by unfair discrimination’ and proceeds to provide an explicit list of instances /variables with histories of discrimination in South Africa. These are: race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture or language. The Constitution thus implies that it is around these variables that establishments and practices should be audited to detect discrimination and affirmative action applied” (italics added). General Notice 851 of 1997, A Conceptual Framework for Affirmative Action and the Management of Diversity in the Public Service, Pretoria, Department of Public Service and Administration.

232

Minority Protection in Post–Apartheid South Africa

106. White Paper on Affirmative Action in the Public Service, Department of Public Service and Administration, Pretoria, March 1998. Other relevant documents are the Public Service Laws Amendment Act (1997), the White Paper on the Transformation of the Public Service (November 1995), the White Paper on Public Service Training and Education (July 1997) and the White Paper on Human Resource Management in the Public Service (December 1997). 107. White Paper on Affirmative Action in the Public Service, 5. 108. Ibid., 6. 109. This seems to be confirmed by the White Paper as well as the definition of “Broad Representation” in the glossary at the end of the White Paper. § 1.22: “[A]lthough affirmative action in the Public Service is focused on the three target groups, its underlying principles are equally applicable to individuals and other groups who have suffered from unfair discrimination and disadvantage and whose affirmation is essential to building an equitable Public Service in the new South Africa. However . . . .” The glossary (p. 32) mentions that “[b]road representation refers to the achievement of a Public Service that is inclusive of all historically disadvantaged groups in a manner that represents the make up of the population within all occupational classes and at all post levels of the Public Service.” 110. White Paper on Affirmative Action in the Public Service, 1. 111. White Paper on Affirmative Action for the Public Service, 7 and 24. Cf. Ibid., 20, par 3.5: “[T]he broad numeric targets set out in the White Paper on the Transformation of the Public Service for each of the three target groups must be translated into strategically prioritized, time-bound targets for each of the department’s occupational groups and must be broken down by race into African, Colored, Indian and White. Incremental targets must also be included for the period beyond 1999 (2005 in the case of people with disabilities) aimed at achieving full demographic representation within a specified time period.” 112. Section 195 (1)(i), 1996 Constitution. 113. White Paper on Affirmative Action in the Public Service, 6. 114. The Democratic Party argues, for example, that the ANC’s program of racial transformation was furthest advanced in the civil service where their “ ‘racial bean counting’ had resulted in, among other things, posts being left vacant because the only qualified applicants were whites, experienced civil servants given huge severance packages and then being reemployed as consultants; and a breakdown in training for those entering the service, because there was no one left to train them” (X, “DP leads the charge on ‘reverse racism,’” 3). 115. Employment Equity Act, No 55 of 1998, Government Gazette, 19 October 1998, No 19370. The Act came into effect 23 October 1998 (X, “Employment Equity Act Becomes Law,” [www.anc.org.za/cgi-bin/shownews], 23 October 1998. 116. Employment Equity Act, section 1 (d). 117. X, “Equity Bill, Significant Piece of Legislation: Mdladlana,” [www.anc.org.za/cgibin/shownews], 20 August 1998; X, “Fiery Exchanges, Walkout during Debate on Labour Bill,” [www.anc.org.za/cgi-bin/shownews], 20 August 1998; X, “DP Tables Amendments to Employment Equity Bill,” [www.anc.org.za/cgi-bin/shownews], 24 July 1998; X, “Bill Does Not Reintroduce Apartheid Classifications: Mdladlana,” [www.anc.org.za/cgi-bin/shownews], 21 July 1998. 118. Section 6, Employment Equity Act. 119. Section 13, Employment Equity Act.

The Implementation and Application Phase

233

120. X, “FF Warns of Violence as NCOP Passes Employment Equity Bill,” [www.anc. org.za/cgi-bin/shownews], 8 September 1998; X, “Employment Equity Bill Passed,” [www.anc.org.za/cgi-bin/shownews], 21 August 1998. 121. X, “FF Warns of Violence as NCOP Passes Employment Equity Bill,” [www.anc. org.za/cgi-bin/shownews], 8 September 1998. 122. Section 15 (1), (2) (d), Employment Equity Act. 123. Section 15 (3), Employment Equity Act. 124. Section 20 (3), Employment Equity Act also allows to take into account prior learning, relevant experience and considers someone suitably qualified if the person has the capacity to acquire, within a reasonable time, the ability required to do the job. 125. Section 15 (4), Employment Equity Act. 126. X, “First Employment Equity Plans Expected by December 1999” [www.anc.org.za/ cgi-bin/shownews], September 22 1998. 127. X, “Minister Criticises Big Business and CEOS on Equity” [www.anc.org.za/cgibin/shownews], 2 October 2000. 128. As Ngwena highlights, the Employment Equity Act also contains a ban on HIV testing which is argued to amount to a more tangible safeguard against invasions of privacy by employers and an important adjunct to the protection of equality: C. Ngwena, “HIV in the Workplace: Protecting Rights to Equality and Privacy,” South African Journal of Human Rights 1999, 515. 129. It is, for example, interesting to notice that 23 November 2000 the South African Banking Council supported the proposed equality and antidiscrimination legislation but wanted an amendment allowing banks to discriminate based on “objective commercial criteria.” Apparently the new Code of Banking Practice already committed banks to nondiscriminatory practices on such bases as race or religion. Nevertheless, it was acknowledged that there was still no agreement on what constituted objective commercial criteria (X, “Banking Industry Asks to Be Allowed to Discriminate” [www.anc.org.za/cgi-bin/shownews], 23 November 1999). 130. Cf. X, “White Union Wants ‘Black’ Jobs Left Vacant by Affirmative Action,” [www.anc.org.za/cgi-bin/shownews], 15 October 1998; X, “The New Struggle Against ‘Apartheid wage Gap,’” [www.anc.org.za/cgi-bin/shownews], 9 October 1998. Cf. Galiguire, “Voices from the Communities,” 14–15. There are ongoing problems regarding the actual implementation of affirmative action, see for example: X, “Foreign Ministry Accused on Flouting the Law” [www.anc.org.za/ cgi-bin/shownews], 7 February 2001, in which it was claimed the foreign affairs ministry had deliberately flouted legislation in order to accelerate affirmative action. Regarding the appointment of foreign affairs administrative officers, the process was arbitrarily suspended because the candidates were not black enough, after which new criteria for selection were advertised, leaving out the requirement of experience. In the process every law of the book is said to have been broken. These kinds of incidents should be avoided and if they occur should be subject to public scrutiny so that the government does not lose credibility concerning its focus on substantive equality and fairness. 131. The Gay Case, CC, § 132. It should be mentioned that legal counsel for the Coalition for Gay and Lesbian Equality said that “the judgement would have an impact not only on gay and lesbians but on all minority groups struggling for equality in South Africa” (X, “Constitutional Court Decriminalizes Gay Sex,” [www.anc.org.za/ cgi-bin/shownews], 9 October 1998).

234

Minority Protection in Post–Apartheid South Africa

132. National Language Services (DACST), Language Policy in South Africa, [www.dacst.gov.za/arts_culture/language/langplan/policy.htm], 1–2, which outlines the several relevant constitutional provisions. 133. Section 35 (3)(k), 1996 Constitution: “Every accused person has a right to a fair trial, which includes the right . . . (k) to be tried in a language that the accused person understands or, if that is not practicable, to have the proceedings interpreted in that language.” Section 35 (4), 1996 Constitution: “Whenever this section requires information to be given to a person, that information must be given in a language that the person understands.” 134. See inter alia F. Venter, “The Protection of Cultural, Linguistic and Religious Rights: The Framework Provided by the Constitution of the Republic of South Africa, 1996” in X (ed.). Seminar Report: The Constitutional Protection of Multiculturalism, Johannesburg, KAS, 1998, 20. 135. See inter alia Kashula & Anthonissen, Communicating across Cultures in South Africa, 100. 136. Currie, “Official Languages” in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, Kenwyn, Juta, loose-leaf, 37.3–37.4; Desei, “The Evolution of a PostApartheid Language Policy in South Africa: An On-going Site of Struggle,” 19. 137. Section 6 (2), 1996 Constitution. 138. Cf. Currie, “Official Languages,” 37.5. 139. In October 2000 the current Minister of Justice and Constitutional Development, Maduna, put forward that English should be the sole language of record, while all participants in court proceedings should be allowed to use the language of their choice in court, with the state providing interpreters: X, “English Should Be Language of Record in Courts: Maduna” [www.anc.org.za/cgi-bin/shownews], 19 October 2000. In March 2001, Anne Marie Beukes from the Language Planning Unit of the Department of Arts, Culture, Science and Technology, indicated that they were not sure yet about the actual intentions and plans of the Minister in this regard (e-mail dd. 8 March 2001). 140. For an in-depth analysis of section 6, 1996 Constitution, see L.T. Du Plessis and J.L. Pretorius, “The Structure of the Official Language Clause. A Framework for its Implementation,” SA Public Law 2000, 505–526. 141. Sachs, Language Rights in the New Constitution, 2; LANGTAG, Towards a National Language Plan for South Africa: Final LANGTAG Report, 9. 142. Desei, “The Evolution of a Post-Apartheid Language Policy in South Africa: An On-Going Site of Struggle,” 19; LANGTAG, Towards a National Language Plan for South Africa, 8. 143. LANGTAG, Towards a National Language Plan for South Africa, 28–29. Cf. T.G. Reagan, “Language Planning and Language Policy in South Africa: A Perspective on the Future” in R. Meshtrie (ed.), Language and Social History: Studies in South African Sociolinguistics, Cape Town, David Philip, 1995, 320. 144. Section 6 (5), 1996 Constitution. 145. Cf. inter alia Currie. “Official Languages,” 37.3–37.4. 146. For a discussion of the implications of the use of several languages for legislation in view of textual conflict that might emerge (as well as the impact of sections 240 and 82 in the latter regard), see L.M. Du Plessis, “Statutory Multilingualism and Textual Conflict under the 1996 Constitution,” Tydskrif vir Hedendaagse RomeinsHollandse Reg 1998, 276–284.

The Implementation and Application Phase

235

147. Regarding language use in courts (excluding the issue of language of records), the Constitution specifies in section 35 (3)(k), 1996 Constitution that an accused should be tried in a language that he understands and section 35 (4), 1996 Constitution that whenever a person should receive information related to criminal trial he or she is involved in that information must be given in a language that person understands. This stance seems to be in accordance with the one at international law and thus does not give a right to be tried in a language of choice. Similarly, a right to a fair trial would arguably not extend beyond the right for a civil case to be heard in a language the parties understand (as is the case under international law). 148. See inter alia Currie, “Official Languages,” 37.8–37.10. 149. Ibid., 37.11. 150. Ibid. 151. Currie, “Official Languages,” 37.13. See also Sachs, Advancing Human Rights in South Africa, 180. 152. See Currie, “Official Languages,” 37.12. 153. Cf. Louw v Transitional Local Council of Greater Germiston, High Court— Witwatersrand Local Division, 19 May 1997, 1997 (8) BCLR 1062 (W) where it was held, in relation to the language section of the Interim Constitution which was not explicit in that regard, that it “did not confer on members of a local government body the right to use any official language when addressing it. Nor did it preclude a local government body from resolving in the course of regulating its own procedure, that only one official language would be the language of government and debate.” The case dealt with a complaint that the (ANC-dominated) Council concerned had decided to no longer use Afrikaans as one of the Council’s official languages and would use only English in view of efficiency and cost effectiveness. 154. Currie, “Official Languages,” 37.8. 155. Currie, “Official Languages,” 37.8. Cf. LANGTAG, Towards a National Language Plan for South Africa, 35 where the report on equitable and widespread language services recommended that the infrastructure for language services development should be created as there is a lack of trained African language interpreters and translators. 156. Currie, “Official Languages,” 37.9–37.10. 157. The Interim Constitution was more explicit regarding language use in communications with the public administration and arguably incorporates the sliding-scale approach through the inclusion of the practicability test. Section 3 (3), 1993 Constitution provided that “[w]herever practicable, a person shall have the right to use and to be addressed in his or her dealings with any public administration at the national level of government in any official South African language of his or her choice.” 158. Currie, “Official Languages,” 37.10. Cf. LANGTAG, Towards a National Language Plan for South Africa, 30. 159. Section 6 (2), 1996 Constitution. 160. Currie, “Official Languages,” 37.12. There are several references in this respect in the Final Langtag Report: LANGTAG, Towards a National Language Plan for South Africa, 17–19, 22, 29, 35. 161. Pan South African Language Board Act, 1995, section 8 (1)(a) and (e). 162. Interviews with Zubeida Desei, Theo Du Plessis, and Neville Alexander referred to previously.

236

Minority Protection in Post–Apartheid South Africa

163. PANSALB’s Position on the Promotion of Multilingualism in South Africa: A Draft Discussion Document,” Pretoria, 4 February 1998. This was reproduced in the 1999 Annual Report of PANSALB, more specifically as Addendum B. 164. Ibid., 6. 165. Ibid. 166. Provincial Languge Committees are established in terms of section 8 (8)(a) of the Pan South African Language Board Act. 167. PANSALB, Annual Report 2000, Pretoria, DACST, 2000, 14–16. 168. Section 8 (8)(b) of the PANSALB Act, 1995 empowers PANSALB to establish national language bodies for all the official languages of South Africa, including Khoi and San languages, South African sign languages, and the heritage languages. 169. PANSALB, Annual Report 2000, Pretoria, DACST, 2000, 18–19. 170. Ibid., 19. 171. Pan South African Language Board Act 1995, section 8 (1)(i). 172. Pan South African Language Board Act 1995, section 8 (4). 173. X, “Most Language Complaints from Afrikaners” [www.anc.org.za/cgi-bin/ shownews], 22 March 2001. 174. For an overview of the complaints that PANSALB received in 1998, see PANSALB, Annual Report 1998, Pretoria, DACST, 1998, 12. See similarly for the years 1999 and 2000, PANSALB, Annual Report 1999, Pretoria, DACST, 1999, 30–34; PANSALB, Annual Report 2000, Pretoria, DACST, 2000, Addendu A. Christa Roodt, legal advisor of PANSALB, compiled an overview of all complaints submitted to PANSALB by 1 March 2001 (sent as e-mail attachment dd. 23 March 2001). It should also be mentioned that a report by the University of the Free State’s Center for Human Rights Studies, dd. 12 February 2000, condemned the Bloemfontein city council for defying the aims of the Constitution by refusing to issue its monthly municipal accounts in languages other than English. The council’s assertion that promoting the use of other languages would be too costly was flatly rejected (X, “Council Defies Constitution on Language,” [www.anc.org.za/cgi-bin/shownews], 14 February 2000). The matter was also probed by PANSALB, which decided 28 April 2000 that “the practice of the Municipality violates the language rights of the Afrikaansspeaking residents of Bloemfontein; that the potential negative impact of considerations of a financial and administrative nature on the policy of multilingualism may not be elevated to the status of a norm on the same level with the language policy norms outlined in the Constitution; and that the municipality must take the language usage and preferences of its residents into account in planning and finalizing its accounts.” Apparently a person was appointed to draft a language policy and the practice of the newly elected council is more reconciliatory. 175. X, “Exclusive Use of English in Communication Unconstitutional: PANSALB” [www.anc.org.za/cgi-bin/shownews], 26 March 2000. 176. Mine Workers Union and SACU versus Telkom. Decision in terms of s 11(7) of the PANSALB Act 1995, Government Gazette No 21357, 14 July 2000. 177. X, “Eskom’s English-only Policy Unconstitutional”: PANSALB,” [www.anc. org.za/cgi-bin/shownews], 2 May 2000. 178. Interview, Neville Alexander, Cape Town, 27 March 1998. 179. E-mail by Christa Roodt, legal advisor to PANSALB, dd. 25 April 2001. 180. Pan South African Language Board Act, 1995, section 8 (1)(g). Although the members of PANSALB were initially dismayed about envisaged amendments to the

The Implementation and Application Phase

181.

182.

183.

184. 185.

186.

187. 188.

189.

190.

191.

237

PANSALB Act because they were not consulted and because they felt that their independence was threatened by these amendments (X, “PANSALB ‘Deeply Disturbed’ over Language Bill,” [www.anc.org.za/cgi-bin/shownews], 9 September 1998), the subsequent amendments and the eventual Act were considered acceptable. It seems positive that the Minister of Arts and Culture announced 28 May 2001 that he intended to enlarge PANSALB as a matter of urgency so as to be in line with the constitutional prescription that the board should consist of between eleven and fifteen members. At the moment the board consists of a mere seven members: X, “Pansalb Board Members to Be Increased: Ngubane,” [www.anc.org.za/cgi-bin/ shownews], 29 May 2001. It should also be highlighted that there is an increasing call to enhance PANSALB’s enforcement powers so as to give it more teeth: [www.geocities.com/ groep63/ taalregte.htm]. Cf. Z. Desei, “Enabling Policies, Disabling Practices,” paper presented at the Tenth World Congress of Comparative Education Societies in Cape Town July 1998, unpublished but on file with the author, 2. Cf. the exceptional instance that PANSALB publicly criticized government for its monolingual tendencies: X, “Government Heading Towards Monolingualism: Language Board,” [www.anc.org.za/cgi-bin/shownews], 4 June 1998. Cf. Du Plessis, “The Pan South African Language Board’s Liaison with the Commission,” 136. See inter alia Reagan, “Language Planning and Language Policy in South Africa: A Perspective on the Future,” 323; Sachs, Language Rights in the New Constitution, 15. See also X, “South Africa—a Young Democracy and Its Babel,” [www.anc. org.za/cgi-bin/shownews], 9 March 1998. Interview A.M. Beukes, Language Directorate of DACST, Pretoria, 19 January 1999 and e-mail from her dd. 8 March 2001. Cf. K. Hartshorne, “Language Policy in African Education: A Background to the Future” in R. Meshtrie (ed.), Language and Social History. Studies in South African Sociolinguistics, Cape Town, David Philip, 1995, 317. Inter alia X, “IFP, CP Shocked at Closure of Afrikaans Department at Natal Varsity,” [www.anc.org.za/cgi-bin/shownews], 4 July 1998. X, “Call to Ensure Future of Afrikaans at Varsities,” [www.anc.org.za/cgibin/shownews], 14 August 1998; X, “Government Must Ensure Survival of Afrikaans at Universities,” [www.anc.org.za/cgi-bin/shownews], 2 July 1998. See several articles posted at [www.geocities.com/group63/taalregte] like Alet Rademeyer, “Afrikaans in hoer onderwys op die spits”; “Groep van 63 vra om Afrikaanse universiteit”; Z.B. du Toit, “Konsensus by beraad oor Afrikaans ’merkwaardig.” Politieke Redactie, “Engels dalk gou voertaal vir Weermag,” Aktueel, 18 February 1998; X, “Defence Language Policy Proposals to Be Discussed,” Defence Language Policy Proposals to be Discussed, 17 February 1998; X, “FF Slams Proposed Defence Language Policy,” [www.anc.org.za/cgi-bin/shownews], 17 February 1998. X, “Language Policy Proposals Need to Be Relooked At: Ginwala,” [www.anc.org.za/cgi-bin/shownews], 4 June 1998; H. Coetzee, “Voorstel oor Taal in Parlement laat Veeltaligheid Uitstap,” Burger, 14 February 1998.

238

Minority Protection in Post–Apartheid South Africa

192. X, “Dramatic Change in Language Proposals for Parliament,” [www.anc.org.za/cgibin/shownews], 20 July 1998. 193. PANSALB, Language Use and Language Interaction in South Africa, Pretoria, September 2000. The report also contains interesting information regarding language use in the private sphere such as the findings that there is a high level of home-language maintenance although the position of isiNdebele and Xitsonga appears to be fairly vulnerable (ibid., 3). Furthermore, English gains a little relative to the distribution of home languages regarding main language use in the neighborhoods of respondents. It gains even substantially as the language used second most often. Also Afrikaans gains slightly as the language used most often in the neighborhood. In general, though, most respondents are able to use their own languages in the neighborhood situation (ibid., 4). 194. Ibid., 5. 195. Ibid. 196. Ibid., 6. 197. Ibid., 7. 198. Ibid., 11–12. 199. X, “Multilingualism Encouraged by Language Program,” [www.anc.org.za/cgibin/shownews], 1 September 1997. 200. Interview with T. Mathole, Gauteng Department of Arts and Culture, Johannesburg, 21 April 1998; Interview with Q. Van der Merwe, Western Cape Department of Arts and Culture, Cape Town, 19 March 1998. 201. DACST, Hoyozela, 2 states that the multi-lingualism conference “heralded DACST’s official launch of its Multi-lingualism Awareness Campaign,” which is described as a “symbolic and appropriate statement of the Government’s seriousness in encouraging multilingualism, primarily in the public service, and to a certain degree in South African society.” 202. Interview A.M. Beukes, Language Directorate of DACST, Pretoria, 19 January 1999 and follow-up conversation, 16 May 2001. For an overview of several policy developments, see also the document of the National Language Service entitled Language Policy in South Africa, [www.dacst.gov.za/arts_culture/language/ langplan/policy.htm], 3–5 and other documents at the website of DACST, Section Language. 203. Interview A.M. Beukes, Language Directorate of DACST, Pretoria, 19 February 1998. The Language Plan for South Africa is intended to take over and “implement” the recommendations of LANGTAG. The Final LANGTAG report contains several interesting recommendations like the need for language awareness campaigns to change the negative attitude towards indigenous languages, to modernize the African languages, to adopt an approach of additive bilingualism in education, and to provide translation services in the public service as well as appropriate training programs for the staff (LANGTAG, Towards a National Language Plan for South Africa, 8–12). 204. LANGTAG, A Language Plan for South Africa: Preparing for a Multilingual Future, Pretoria, DACST, August 1997, 3 and 15. 205. DACST, Report on a Survey of Language Infrastructure in National Government Departments and Provinces of South Africa, Pretoria, DACST, April 2001. 206. The national departments of Agriculture, Home Affairs, Labor, Land Affairs and Water Affairs, and Forestry.

The Implementation and Application Phase

239

207. The four provinces with adopted language policies are the Free State, KwazuluNatal, the Northern Province, and the Western Cape. The three provinces with draft language policies (May 2001) are Mpumalanga, North West, and the Eastern Cape. 208. Interview A.M. Beukes, Pretoria, DACST, 19 January 1999. 209. L. Schlemmer & Markdata, Afrikaanssprekendes in die Nuwe Bestel: ‘n Landwije Meningsopname, 6 April 1997, where it is argued that the status of Afrikaans is de facto lowered although not as a goal in itself but rather as consequence of the principle of equality. 210. H. Giliomee, “Die Nuwe Afrikaanse Taalbeweging,” presentation delivered at a meeting of die Nederlands Zuid-Afrikaans Vereeniging, March 1997 (unpublished but on file with author). 211. See inter alia X, “Student Trust Fund for Disadvantaged Students Established,” [www.anc.org.za/cgi-bin/shownews], 5 May 1998; X, “Teacher Redeployment Scheme Set for Survival,” [www.anc.org.za/cgi-bin/shownews], 15 October 1997; X, “Transformation Biggest Challenge Facing Tertiary Institutions,” [www.anc. org.za/cgi-bin/shownews], 22 November 1996. 212. See inter alia X, “Vryburgh High School Has Overhaul after Protests and Riots,” [www.anc.org.za/cgi-bin/shownews], 8 October 1998 concerning a school wrecked by racial conflict earlier in 1998 and X, “Black RAU Students Live in Fear,” [www.mg.co.za/mg/news/980ct1/6oc-rau.html]. 213. After an enumeration of achievements in education, the national Minister of Education highlights numerous challenges. See X, “Statement by the Minister of Education, Professor SME Bengu, ANC Minister Media Briefing, Luthuli House, August 27, 1998,” [www.anc.org.za/cig-bin/shownews], 28 August 1998; X, “FF to Meet Asmal on Language,” [www.anc.org.za/cgi-bin/shownews], 28 May 2001. 214. Other interesting developments include the launch of a school supervision program in September 2000, aimed at improving performance standards in schools (X, “Asmal Launches School Supervision Procedure,” [www.anc.org.za/cgi-bin/shownews], 29 September 2000); the launch in October 2000 of a document aimed at helping teachers explore alternative disciplinary measures after corporal punishment had been banished ([www.anc.org.za/cgi-bin/shownews], 5 October 2000); and the statement by Minister Asmal in March 2001 that about 10 percent of students at South African universities and technikons should originate from other Southern African Development Community Countries ([www.anc.org.za/cgi-bin/shownews], 13 March 2001). Minister Asmal also underlined at the launch of the National Education Plan for All 2000 Assessment Report that there is no excuse for defaulting on basic education as this amounts to an obligation which is central to the lives and welfare of the people of South Africa (X, “No Excuse for Defaulting on Basic Education Promise: Asmal,” [www.anc.org.za/cgi-bin/shownews], 2 December 1999). 215. The national Minister of Education proclaimed National Norms and Standards for School Funding in terms of the South African Schools Act ([www.polity.org.za/ govdocs/policy/norms&standards.htm]). The document calls for public expenditure to be targeted for redress, equality, and quality (p. 6). The funding of public schools follows a sliding-scale approach since the schools are divided into five categories based on their financial needs and the degree of poverty of the school community (p. 14). Also the subsidies for private schools follow a sliding scale depending on the level of fees they charge (p. 19). See also X, “More Money for Poor Schools in Terms of New Law,” [www.anc.org.za/cgi-bin/shownews], 12 October 1998.

240

Minority Protection in Post–Apartheid South Africa

216. Cf. Y. Sayed & N. Carrim, “Democracy, Participation and Equity in Educational Governance,” South African Journal of Education 1997, 98. However, the Report on Values, Education and Democracy, released by the Department of Education in 2000, reveals a shift to the discourse of morality, away from rights, and in this sense has the potential to undermine actual antidiscrimination interventions in schools: N. Carrim & M. Tshoane, “The Holy State? Values in Education,” Quarterly Review December 2000, 13. 217. South African Schools Act, No 84 of 1995, section 5. Cf. the National Education Policy Act, No 27 of 1996, section 4(a)(i) and Notice 2432 of 1998 issued by the national Department of Education entitled “Admission Policy for Ordinary Public Schools,” Government Gazette, 19 October 1998. 218. X, “Asmal Unhappy with School Governing Body Bigots,” [www.anc.org.za/ cgi-bin/shownews], 16 February 2000. 219. X, “Asmal Puts Rasta Poser,” [www.anc.org.za/cgi-bin/shownews], 15 February 2001. 220. X, “Keep Party Politics Out of Schools: Asmal,” [www.anc.org.za/cgi-bin/ shownews], 12 February 2001. 221. Cf. X, “Develop New Criteria for Admitting Students: SASCO,” [www.anc.org.za/ cgi-bin/shownews], 14 January 1997. 222. National Commission on Higher Education, Report: a Framework for Transformation, Pretoria, Department of Education, 1996, 9. 223. Policy developments at the national Department of Education that are also relevant for the distinctive previously disadvantaged communities/population groups are the provision of adult education and the project aimed at overcoming barriers to learning and development. The booklet A National Multi-Year Implementation Plan for Adult Education and Training: Provision and Accreditation, Pretoria, National Department of Education, October 1997, underscores the link with the need to redress disadvantages on the basis of the past (at 2). September 2000 the Adult Education Bill was unanimously adopted, so as to address the problem of illiteracy, which had resulted from the apartheid policy (X, “Parties Unanimously Accept Adult Education Bill,” [www.anc.org.za/cgi-bin/shownews], 12 September 2000). The National Commission on Special Needs in Education and Training and the National Committee for Education Support Services printed a brochure entitled Quality Education for All: Overcoming Barriers to Learning and Development, Pretoria, Department of Education, 28 November 1997, which starts from the premise that “[d]iscriminatory attitudes resulting from prejudice against people on the basis of race, class, gender, culture, disability, religion, ability, sexual preference and other characteristics manifest themselves as barriers to learning when such attitudes are directed towards learners in the education system” (ibid., 18) and concludes that sections 9 and 32 of the 1996 Constitution taken together mean that “there is a right to equal educational provision for all learners and the recognition that to create equal opportunities for all citizens to enjoy these rights, particular mechanisms or measures may need to be in place to redress past inequalities” (ibid., 51). 224. See inter alia X, “Higher Education Council Holds Inaugural Meeting,” [www.anc.org.za/cgi-bin/shownews], 15 June 1998, which describes the council as an advisory body to the education minister with a central mandate of transforming the higher education system. 225. Higher Education Act, No 101 of 1997, section 5 (1).

The Implementation and Application Phase

241

226. See [www.polity.org.za/govdocs/reports/education/chereport.html]. 227. The Report of the Working Group on Values in Education, entitled Values, Education and Democracy, which focused on equity, tolerance and multilingualism is bound to have had its influence as well. See [www.polity.org.za/govdocs/reports/ education/eduvalues.html]. 228. See [education.pwv.gov.za/DoE_Sites/Higher_Education?HE_Plan/Section_3.htm], 1. 229. Ibid. 230. J. Castle, R. Osman, & M. Breier, “Will RPL Succeed in Higher Education?” Review Quarterly of Education and Training in South Africa, 2001, vol. 8, no. 1, 25. 231. Ibid., 26–27. Regarding equal access to education, reference should also be made to ABET or Adult Basic Education and Training. It seems that “in spite of impressive policy developments and a rapid institutionalisation of ABET, . . . actual provision has fallen far short of what was envisioned (J. Aitchison, “ABET on Trial?” Review Quarterly of Education and Training in South Africa, 2001, vol. 8, no. 1, 23). Therefore alternative visions of ABET are being investigated: Ibid., 15–25. 232. Ibid., 8. 233. Ibid., 9. 234. See X, “Education Quota Systems Could Be Introduced: Asmal,” [www.anc.org.za/ cgi-bin/shownews], 5 March 2001. 235. Ibid., 10. 236. Ibid., 11. 237. Ibid., 12. The Plan makes the following interesting assessment: “[A]n important strategy that institutions have largely ignored is the need to change institutional cultures. There is growing evidence to suggest that historically white institutions, in particular, are unable to recruit or retain black staff because the institutional culture is alienating rather than accommodating. This needs to be addressed urgently as it also impacts on black students success and performance, and is an important obstacle to attracting black students into postgraduate programs, especially research programs”(ibid.). 238. See [education.pwv.gov.za/DoE_Sites/Higher_Education/HE_Plan/section_7.htm]. 239. Each university is regulated by an Act of Parliament, for example: University of the Witwatersrand, Johannesburg, (private) Act, No 15 of 1959 as amended, Statutes of the Republic of South Africa—Education, Issue No 32, 505–523; University of South Africa Act, No 19 of 1959 as amended, Statutes of the Republic of South Africa—Education, Issue No 27, 555–565; University of Cape Town Act, No 38 of 1959 as amended, Statues of the Republic of South Africa—Education, Issue No 27, 645–655; University of Stellenbosch (private) Act (House of Assembly) No 107 of 1992 as amended, Statutes of the Republic of South Africa—Education, Issue No 26, 601–613; University of Natal (private) Act, No 7 of 1960, Statutes of the Republic of South Africa—Education, Issue No 27, 751–769. 240. For a discussion of several limitations to university autonomy inter alia on the basis of the Act on Higher Education, see C.R.M. Dlamini, “Limitations and Threats to University Autonomy and Academic Freedom,” Tydskrif vir Hedendaagse RomeinsHollandse Reg 2000, 171–199. 241. Higher Education Act, 1997, section 37 (1). 242. Higher Education Act, section 37 (3). It should be remarked that this act adopts the expression “unfair discrimination” used in the Bill of Rights. The actual policies of the various universities are divergent, although they all have some kind of

242

243. 244.

245.

246. 247.

248.

249.

Minority Protection in Post–Apartheid South Africa

mechanism, which allows looking beyond the matric results (general examination at end of secondary education). To give a couple of examples: University of South Africa (UNISA) also organizes its own entrance examination that allows for flexible assessment (General Information, General Rules. Calendar 1998, part I UNISA), Stellenbosch University’s Academic Development Program has a division working on admissions policy that allows students to enter at different levels via adaptation courses and their own entry test (interview Dr. Swanepoel, 25 March 1998, Director of the Academic Development Program), and Wits University has quite an advanced system that combines in case of insufficient matriculation results a separate selection test AND a disadvantage index that is calculated on the basis of an autobiographical question list filled in by the learners (interview P. Watson, lecturer at Wits University, 10 March 1998). See also X, “Obnoxious Apartheid Remnants Removed from School Curricula” [www.anc.org.za/cgi-bin/shownews], 8 May 1997. As Stonier underscores: “[A]ttention will need to be given to appropriate curriculum adjustments and many of these could run in tandem with preparing the school communities. Merely developing an ‘add-on’ curriculum is not the answer and should be avoided. Singular attention would need to be paid to the essential meaning of an ‘inclusive’ curriculum that enables pupils from their respective groups to engage in an enriching interaction and involvement with each other so that they are able to cross cultural boundaries with empathy and understanding. In the sensitive areas of language, religious conviction, customs and history, teachers will need to display great perceptiveness if pupils for both groups are to feel affirmed. Surely, one of the great tasks of the teacher is to ensure that each pupil has his/her personhood and his/her personal identity affirmed?” (J. Stonier, “Intercultural Education in South Africa,” 46). R. Greenstein, “Education, Identity and Curriculum: Politics in the New South Africa” in P. Kallaway et al. (eds.), Education after Apartheid. South African Education in Transition, Cape Town, UCT, 1997, 129; C. Soudien, “The Debate on Equality and Equity in South African Education” in M. Cross et al. (eds.), Dealing with Diversity in South African Education. A Debate on the Politics of a National Curriculum, Kenwyn, Juta, 1998, 132. National Commission on Higher Education, Report, 64. The eight learning areas of Curriculum 2005 are language, literacy, and communications; mathematical literacy, mathematics, and mathematical sciences; human and social sciences; physical and natural sciences; technology; arts and culture; economic and management sciences; and life orientation. See also X, “Retraining Teachers a Major Hurdle in New Curriculum: Bengu,” [www.anc.org.za/cgi-bin/shownews], 7 September 1998; X, “More Attention Should Be Given to Retraining Academic Staff,” [www.anc.org.za/cgibin/shownews], 30 October 1997. The National Department of Education is developing in 2001 a national curriculum statement, aimed at improving Curriculum 2005. One of the twelve working groups, established to work on this statement, focuses on languages, while another focuses on human rights and inclusivity. This focus arguably acknowledges the importance of multi-lingualism and multiculturalism in education. N. Carrim, Education for Democracy: Democracy for Education. The South African Case. Final Report, Johannesburg, School of Education—University of the Witwatersrand, 2000, 28.

The Implementation and Application Phase

243

250. See inter alia X, “Both Black and White Teenagers Feel Alienated,” [www.anc. org.za/cgi-bin/shownews], 27 August 1998, which underlines the problems of integration at former only white schools, the rampant racism and racial stereotyping. See also X, “Research Finds Schools Are Not Tackling Desegregation Adequately,” [www.anc.org.za/cgi-bin/shownews], 10 June 1998. 251. Carrim presents an interesting view on this aspect when he puts forward that: “the dismantling of apartheid illegitimatized racism and simultaneously opened the spaces for particularistic ethnic assertions. On the level of schools, this has allowed schools to determine the ‘ethos’ of their schools in equally ethnic terms. However, these schools had also to contend with the diverse ethnic backgrounds of their pupils, and with various and varying interpretations of ethnicity within school communities themselves, both for reasons of wider political processes and because of challenges teachers faced within their classrooms. A shift from ‘race’ to ethnicity and identity is clearly discernable here. This shift has propelled some South African teachers, in particular, rapidly to realize the problems of adopting an assimilationist approach to education, and they have opted for multicultural approaches, on the level of practice instead” (N. Carrim, “From ‘Race’ to Ethnicity: Shifts in the Educational Discourses of South Africa and Britain in the 1990s,” 23–24). Cf. N. Carrim, “Anti-Racism and the New South African Educational Order,” Cambridge Journal of Education 1998, 311–312. 252. See inter alia the Zerilda Park School in the Western Cape, organized by PRAESA (headed by Neville Alexander), which is an organization focusing on forms of “alternative education” and the projects of Vic Webb and his organization CENTREPOL (dealing with several features of language policy) situated in Pretoria. 253. There are also other but less pervasive problems regarding accommodation of religious diversity at schools—for example, the wearing of the headscarf by Muslim girls (X, “Ladysmith School Continues to Refuse to Enrol Muslim Pupil,” [www.anc.org.za/cgi-bin/shownews], 16 April 1998). It is obvious that this issue can be related to the prohibition to discrimination on the basis of religion and the official reaction acknowledged the need to ensure that school uniforms were not used as a weapon to discriminate against certain population groups (ibid.). 254. Another interesting issue was the question whether Parliament, by prohibiting corporal punishment in all schools, has unconstitutionally limited the religious rights of parents of children in independent schools who, in line with their religious convictions, had consented to what they termed the “corporal correction” of their children by teachers. Certain independent Christian Schools, under the banner of CESA (Christian Education South Africa) have allowed corporal punishment to be administered to pupils in the belief that this form of correction is an integral part of the Christian faith. CESA brought a case up to the Constitutional Court against the Minister of Education in this regard. The Court held in an unanimous judgment that the religious and community rights under article 15 and 31, 1996 Constitution had been limited. However the limitation was justifiable. Believers cannot claim an automatic right to be exempted by their beliefs from the laws of the land. Furthermore, also independent schools function in the public domain and have to prepare their learners for life in the broader society. It is consequently not unreasonable to expect them to make suitable adaptations to non-discriminatory laws that impacted on their codes of discipline. In any event, save for this one aspect, independent Christian schools are not prevented from maintaining their specific Christian ethos (Christian

244

255. 256.

257.

258. 259. 260. 261. 262. 263. 264.

265. 266.

Minority Protection in Post–Apartheid South Africa

Education South Africa v Minister of Education, Constitutional Court of South Africa, CCT 4/00, 18 August 2000, §§ 23, 50–52). See also S. Pete & M. Du Plessis, “A Rose by Any Other Name: ‘Biblical Correction’ in South African Schools,” South African Journal of Human Rights 2000, 97–120, who underline that the value of corporal punishment will have to submit to the values that the South African Schools Act aims to protect, viz. children’s right to dignity and freedom from cruel, inhuman or degrading treatment. The problem with this last option is that a learning program would not be prepared, and no teachers would be officially trained to teach that course. See also the results of a 1996 nation wide survey done by the national department of education among religions and denominations in South Africa (document given by Dr. R. Van Rensburg, national Department of Education), which revealed that the majority was in favor of religious instruction and more specifically single faith education. Interview with Dr. R. Van Rensburg, National Department of Education, Pretoria, 28 October 1998. The Minister has also assured that Curriculum 2005 recognizes that religion is an integral part of the human experience (X, “Religion in Education Draws big Response,” [www.anc.org.za/cgi-bin/shownews], 20 September 1998). Ministerial Committee on Religious Education, Report: Religion in Curriculum 2005, Pretoria, National Department of Education, 20 January 1999, 10–12. Ibid., 54. Ibid., 40. See also interview with Dr. R. Von Rhensburg, National Department of Education, Pretoria, 19 January 1999. X, “Church Refutes Asmal Statements,” [www.anc.org.za/cgi-bin/shownews], 13 June 2001. Interview with M. Lane, Department of Education, 17 March 1997, Pretoria. South African Schools Act, sections 56, 57, and 14. Furthermore, Regulation No 1738 (national Department of Education, Regulations Relating to the Minimum Requirements of an Agreement between the Member of the Executive Council and the Owner of a Private Property on which a Public School is Provided, Government Gazette, 19 December 1997) prescribes in § 4 (3) and (4) that “[i]f a religious organisation exercises its rights as contemplated in section 57 of the Act, the agreement between the Member of the Executive Council and the religious organization must record the recognized distinctive religious character of the school and the manner in which such distinctive character will be maintained . . .” and “[s]ubject to the agreement contemplated in subregulation (3) the governing body must enter into an agreement with the religious organisation to ensure the preservation of the distinctive religious character of such a public school.” Section 29 (2), first sentence, 1996 Constitution. PANSALB underlined once again 20 February 2001 that “school pupils would fare better if they were initially taught in their mother tongue and gradually introduced to English until a 50/50 balance was achieved. . . . in terms of the current system 80 percent of school time was conducted in English,” thus disadvantaging African students. Consequently, “Pansalb was recommending the development of equivalent language syllabuses in each of the official languages” (X, “First Teach Pupils in Mother Tongue: Pansalb,” [www.anc.org.za/cgi-bin/shownews], 20 February 2001). See also Education Minister Asmal’s statement 7 May 2001, in which he announces

The Implementation and Application Phase

267. 268.

269. 270. 271. 272.

273. 274.

275.

276. 277.

278.

245

a review of the language policy in schools and seemingly acknowledges the importance of mother-tongue education. He states inter alia that many “school governing bodies coerced parents of pupils with home languages other than those offered by the school, to select the language on offer, thus compromising the pupils’ cognitive development: X, “Education-Language Pretoria,” [www.anc.org.za/cgi-bin/ shownews], 7 May 2001. However, it has to be noted that in the Education Portfolio Committee where PANSALB made its statement 20 February 2001, the director general of the department of education voiced disagreement with PANSALB’s findings: Report on Briefing by PANSALB on Language Medium in Education to the Education Portfolio Committee, 20 February 2001, 15. See inter alia several contributions in K. Heugh et al. (eds.), Multilingual Education for South Africa, Johannesburg, Heinemann, 1995. Chaskalson, “The Constitution and the Bill of Rights: Their Implications for Language Education” in D. Brown (ed.), Educational Policy and Language Learning for a Multilingual Society, Proceedings of a Conference 30 October–1 November 1996, Natal, Education Policy Unit, 1997, 13. South African Schools Act, 1996, section 6(1). South African Schools Act, 1996, section 6(2). Government Gazette, 4 August 1997. Language in Education Policy in terms of section 3(4)(m) of the National Education Policy Act, 1996 (Act 27 of 1996), Government Gazette, 4 August 1997, §§ 4.1.5. and 4.1.6 where it stated that “[w]hichever route is followed, the underlying principle is to maintain home language(s) while providing access to and effective acquisition of additional language(s). Hence, the Department’s position that an additive approach to bilingualism is to be seen as the normal orientation of our languagein-education policy” and “the obligation on the education system to promote multilingualism.” Ibid., § 5.3.1. See inter alia ibid., § 5.4.4. with an explicit reference to mother tongue instruction: “[T]he provincial department must explore ways and means of sharing scarce human resources. It must also explore ways and means of providing alternative language maintenance programs in schools and or school districts which cannot be provided with or offer additional languages of teaching in the home languages of learners.” § 5.4.3.: “[I]t is reasonably practicable to provide education in a particular language of learning and teaching if at least 40 in Grade 1 to 6 or 35 in Grades 7 to 12 learners in a particular grade request it in a particular school.” See also D. Brown, “Current Developments in Language Policy,” 3. Especially § 5.3.2 of the Norms and Standards are revealing in this respect: “[W]here there are less than 40 requests in Grades 1 to 6, or less than 35 requests in Grades 7 to 12 for instruction in a language in a given grade not already offered by a school in a particular school district, the head of the provincial department of education will determine how the needs of those learners will be met, taking into account . . . ; 5.3.2.2. the need to achieve equity; 5.3.1.3. the need to redress the results of past racially discriminatory laws and practices; 5.3.2.4. practicability.” P. Pluddeman, “Presenting a Further Diploma in Multilingual Education: Work in Progress,” Cape Town, PRAESA, 1997, 1. See also D. Gough, “Language as Subject” in X (ed.), Educational Policy and Language Learning for a Multilingual

246

279.

280.

281.

282. 283.

284.

285.

286. 287. 288.

289.

Minority Protection in Post–Apartheid South Africa

Society, Proceedings of a Conference 30 October–1 November 1996, 45 and the approach outlined in Draft Language in Education Implementation Plan, Pretoria, National Department of Education, October 1998. PANSALB has often voiced a similar remark in its review of language policies by government departments (Interview Zubeida Desei, member of PANSALB, Cape Town, 19 March 1998). Interview Paul Muskar, 14 March 1997, Johannesburg; Interview with Professor D. Gough, Department African Languages, University of the Western Cape, 3 March 1997. See also C. Bloch, G. De Klerk, & P. Pluddeman, Language and Literacy Issues in Multilingual ECD Classrooms, Cape Town, UCT, unpublished but on file with the author; X, “Disturbing Number of Parents Want English Tuition at School,” [www.anc.org.za/cgi-bin/shownews], 13 May 1998. See also Desei, “Enabling Policies, Disabling Practices,” 5. Desei argues that “unless such individual choice is accompanied by a public awareness campaign around language and learning issues, and a massive injection of resources, both material and human, the prejudices of the past are likely to militate against individual learners choosing African as languages of learning.” See PANSALB, Language Use and Language Interaction in South Africa: A Sociolinguistic Survey, Pretoria, 2000, 7. It should be remarked that the National Department of Education is developing an implementation plan for the Language in Education Policy, which would inter alia include a monitoring system of the provincial implementation of the National Norms and Standards regarding Language in Education (interview with W. Van Tonder, National Department of Education, Pretoria, 19 January 1999). X, “Pilot Project Allows Learners to Study in Own Language,” [www.anc.org.za/cgi-bin/shownews], 5 September 2000. He made this statement at the launch of a pilot project, which makes use of computers and especially developed software so as to give learners the opportunity to receive education in and use the language of their choice in the classroom, and not the one determined by the teacher. NCCRD, Language in the Classroom. Towards a Framework for Intervention, Pretoria, Department of Education, 2000, 91. It is furthermore pointed out that a review of the policy should have to consider the incongruities between various policy documents, like the SASA, and the Language in Education Policy and Curriculum 2005 statements. There is also a call on further research into language in education (ibid.). Higher Education Act, No 101 of 1997, sections 5 (1) and (2). X, “Asmal Should Have Mentioned Language Policy: DA,” [www.anc.org.za/cgibin/shownews], 11 March 2001. Uncertainties as to the exact mission and status of the investigation by the Gerwel Commission had promoted the FF to ask a meeting with Minister Asmal so as to discuss the continued existence of Afrikaans Universities, something the party considers a vital matter: X, “FF to meet Asmal on Language,” [www.anc.org.za/cigbin/shownews], 28 May 2001. See inter alia X, “ANC Statement on Language in Education Policy,” [www.anc.org.za/cgi-bin/shownews], 10 July 1997; X, “ANC Bent on Monolingual Education, Says the NP,” [www.anc.org.za/cgi-bin/shownews], 8 July 1997; X, “Bengu Criticises University of Stellenbosch, Calls for Change,” [www.anc.org.za/ cgi-bin/shownews], 28 May 1997.

The Implementation and Application Phase

247

290. See inter alia Z. Desei, interview published in Academic Development, August 1996, University of the Western Cape, 15. 291. N. Alexander, “Language Policy and the National Department of Education” in X (ed.), Educational Policy and Language Learning for a Multilingual Society, proceedings of conference held 30 October–1 November 1996, 30. 292. See inter alia interview with Professor Gough, Department of African Languages, UWC, 3 March 1997; with Terry Volbrecht, Academic Development Project, UWC, 3 March 1997; interview with R. Kapp, Academic Development Program, UCT, 27 February 1997; interview with Professor Webb (linguistics), University of Pretoria, 8 November 1996. 293. National Commission on Higher Education, Report, 380. 294. Ibid., 385. 295. Section 29 (3), 1996 Constitution. 296. South African Schools Act, section 45 and Higher Education Act, section 53. 297. Section 29 (4), 1996 Constitution. 298. South African Schools Act, section 48. 299. See also X, “More Money for Poor Schools in Terms of New Laws,” the private schools’ amount of subsidies is determined in function of the fees they charge, in that the higher these are, the more they would be considered to be serving a rich community and the lower the subsidies they would receive. 300. See also R.R. Kriel, “Education” in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, Kenwyn, Juta, loose-leaf, 38.17. 301. See [education.pwv.gov.za/DoE_Sites/ . . . t/registration_of_private_higher_ education_institutions]. In March 2001 Eighty-eight private higher education institutions have been registered (see also National Plan for Higher Education, Chapter 4.6, Outcome 12). 302. See National Plan for Higher Education, Chapter 4.6, Outcome 12. 303. G.N. Barrie, “Ubuntu Ungamntu Ngabanye Abantu: The Recognition of Minority Rights in the South African Constitution,” Tydskrif vir die Suid-Afrikaanse Reg 2000, 273–276. 304. Cf. I. Currie, “Minority Rights: Culture, Education and Language” in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, Kenwyn, Juta, 35.25. 305. Christian Education South Africa v Minister of Education, Constitutional Court of South Africa, CCT 4/00, 18 August 2000, § 23. 306. This position is arguably confirmed by section 39 (1)(b), 1996 Constitution that instructs the courts to consider international law when they interpret the Bill of Rights. 307. Currie, “Minority Rights: Culture, Education and Language,” 35.18. 308. Section 185 (1)(c), 1996 Constitution. 309. Cf. The Report on Debates and Submissions prepared by the HSRC (22 September 1998) for the Department of Constitutional Development specifies that although there is a clear link between sections 31 and 185 FC, “it does not mean that the Commission has to give effect to the totality of the right” (at 21). 310. Johan Beukman, who has been working on this project from the beginning, first in the Department of Constitutional Development, now in the new Department of Justice and Constitutional Development, indicates, in an interview in Johannesburg dd. 5 May 2001, that the bill should have been before Parliament long ago. The sensitivity of the issue is apparently too daunting to tackle the issues. He furthermore pointed out that since the formation of the new department (taking together Justice

248

311. 312. 313.

314.

315.

316. 317.

318.

319.

320. 321.

Minority Protection in Post–Apartheid South Africa

and Constitutional Development, while splitting of Local and Provincial Government) in June 1999, nothing has happened regarding constitutional development. E-mail dd. 28 April 2001 from Johan Beukman, Department of Justice and Constitutional Development. X, “Parly, Provinces to Hold Simultaneous Cultural Rights Debates,” [www.anc. org.za/cgi-bin/shownews], 27 July 1998. It should be mentioned that on 26 March 1998 an MP for the NP had submitted two private proposals for legislation, one entitled Wetsontwerp op Kultuur-Godsdienstig and the other Taalrade en a Wetsontwerp op die Kommissie vir die Bevordering en Beskerming van die Regte van Kultuur-Godsdienstige en Taalgemeenschappe. It might be that this event has pushed the ANC to clarify its own views in this regard. X, “Media Statement on the Conference on the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities on Heritage Day on 24 September 1998,” [www.constitution.org.za/cgi-bin/shownews], 22 September 1998. See also the speech of Minister Asmal (ANC) at the September 1996 IDASA Conference on matters relating to the Commission, entitled “Constitutional Background and Political Imperatives Surrounding the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (unpublished manuscript, on file with the author), in which he urged to move away from a denouncement of group rights and to “understand from a progressive position that there are certain rights which can only be exercised as group or collective rights.” See Hansard transcripts of the debates in the National Assembly, 4 August 1998, obtained from the Library of National Parliament, Cape Town. See also X, “ANC Caucus discusses Establishment of Human Rights Commission,” [www.anc.org.za/cgi-bin/shownews], 23 July 1998 which deals with the s 185 Commission and where it is said that “while the ANC as a political organization fought against ethnicity, the party did not disregard the existence of ethnic identities and other cultural aspects that the Commission would seek to highlight.” He formulates the central question to the debate as follows “what must be done to create a situation of equality among our diverse cultural, religious and linguistic groups so that they can live and build a happy future together in conditions of peace and friendship, united by their common humanity?” See also Venter, “The Protection of Cultural, Linguistic and Religious Rights: the Framework Provided by the Constitution of the Republic of South Africa, 1996,” 24. Venter postulates that the establishment of the cultural councils as envisaged in section 185 would “be the most practical and viable means for the realisation of selfdetermination in another way than territorially as is provided for in section 235.” See inter alia “ANC ‘Stalling’ Cultural Commission’s Inception: NP,” [www.anc. org.za/cgi-bin/shownews], 17 August 1998. See also the critical prediction formulated by Giliomee, who speaks from a disappointed, threatened Afrikaner viewpoint: “[O]fficial cultural bodies with mere advisory functions will simply smother the cultural issue through first bureaucratising the issue and then emasculating these bureaucracies. If the government is unwilling to grant real power to these cultural bodies—in terms of its agenda I cannot see that it will do so—the onus is on a particular culture which feels strongly about ensuring its future survival—to form its own cultural body” (H. Giliomee, “The Majority, Minorities and Ex-Nationalities in South Africa and the Proposed Cultural Commission,” 15).

The Implementation and Application Phase

322. 323. 324. 325.

326.

327. 328. 329. 330. 331. 332.

333.

334.

249

Draft Bill on the s 185 Commission, sections 24–26. Draft Bill on the s 185 Commission, section 5(3)(a). Draft Bill on the s 185 Commission, section 22 (2) and (3). Deputy-President Mbeki reveals in his speech at the NCOP that South Africa’s population diversity should be adequately accommodated and that minority protection concerns should be dealt with (X, “Statement of Deputy-President Mbeki at the NCOP, Cape Town, 10 November 1998, [www.anc.org.za/cgi-bin/shownews], 10 November 1998). The Gauteng Provincial Legislature in Re Dispute Concerning the Constitutionality of Certain Provisions of the School Education Bill of 1995, Constitutional Court of South Africa, CCT 39/95, 4 April 1996, 1996 (3) SA 165 (CC), 1996 (4) BCLR 537 (CC) (hereinafter Gauteng Education Case, CC, § . . . ). See also Sachs J on behalf of an unanimous court in Christian Education South Africa v Minister of Education, Constitutional Court of South Africa, CCT 4/00, 18 August 2000, §§ 20–25. See Kriel, “Education,” 38.17–38.18. Gauteng Education Case, CC, § 51. Gauteng Education Case, CC, § 52. Gauteng Education Case, CC, § 72. Gay Case, CC, §§ 132 and 134. Gay Case, CC, § 78. The Constitutional Court has, more generally, confirmed the importance of the Constitution’s focus on substantive equality for minorities which would also tie in to the nondiscrimination jurisprudence and more specifically the “nature of the group” factor, see the Gay Case, CC, §§ 22, 25, 60 and 62. Similar difficulties pertaining to choice of priorities in policy development and to actual implementation are visible at the provincial level. In the Free State for example a Center for Citizenship Education and Conflict Resolution has been established. This statutory body has a broad mandate, including equal rights and minority protection but is battling with severe resource constraints (Interview 11 May 2001 with Lizette Pretorius, Willem Ellis, and Juri Smit (employees and director of the Center respectively)). For an interesting discussion and analysis of the Lawrence case, see W. Freedman, “The Right to Religious Liberty, the Right to Religious Equality and section 15 (1) of the South African Constitution,” Stellenbosch Law Review 2000, 99–114. See also GA Prince v The President of the Law Society of the Cape of Good Hope and Others, High Court—Cape Provincial Division, 23 March 1998 (unreported). The Law Society concerned had declined to register a lawyer wishing to qualify as attorney because he had two convictions for the possession of cannabis which according to that lawyer amounted to a violation of his freedom of religion. The Court held that there was indeed a limitation of the freedom of religion but one that was justifiable in terms of the general limitations clause. On appeal to the Supreme Court of Appeal, Prince challenged the criminalization of dagga but shifted to a plea for a religious exemption for Adult Rastafari regarding the Drugs and Drug Trafficking Act. The Supreme Court of Appeal held it had no power to make such an exception and the case is now before the Constitutional Court where the plea for an exception was renewed. In a decision of 12 December 2000 the Constitutional Court held that the parties had not produced sufficient evidence and allowed them to submit further evidence (Prince v President of the Law Society of the Cape of Good Hope and Others, Constitutional Court, 12 December 2000, CCT 36/00). Further hearings in

250

335.

336.

337.

338.

339.

Minority Protection in Post–Apartheid South Africa

the case started 17 May 2001. The questions by the judges of the Constitutional Court focused on the merit and the practicability of crafting a religious exemption to the Act concerned (for Rastafarians). A development, which is closely related, is the amendment to the Divorce Act aimed at eliminating discrepancies between common law and Jewish law in this respect as these discrepancies entailed limping marriages and often unjust results for one of the spouses. The South African Law Commission submitted October 1994 a report on Jewish Divorces, related to the fact that “members of the Jewish faith are able to accomplish the dissolution of a marriage by the delivery and acceptance of a bill of divorce or get by the spouses” (Report, iii). A problem arose because the get was used as a bargaining tool to obtain concessions regarding child custody, financial and other matters from the spouse (Report, iv). In view of the fact that the freedom of religion, requiring a neutral position of the state vis-à-vis the various religions, would be enshrined in the new South African Constitution, the Commission recommended that the proposed reform would be non-specific in regard to any religion (Report, 61). SALC also formulated the following interesting argument regarding the freedom of religion: “[T]he shaping of legislative regimes to protect persons in religiously distinctive positions from losing state benefits or being subject to particular hardships in the operation of the law is precisely what is required by the constitutional guarantee of freedom of religion” (Report, 81). Eventually this report resulted in the Divorce Amendment Act, No 95 of 1996 which had as its long title: To Amend the Divorce Act 1979 so as to Empower a Court to Refuse to Grant a Decree of Divorce if it appears to the Court that the Spouses are bound by their religion to effect a divorce in accordance with their religion before a decree of divorce will have full effect. This development arguably aims at accommodating the religious diversity of the country in a way that prevents abuses of the national legal system and contradicts the new constitutional order. It is remarkable and should be underlined that adherents to the Hindu faith are not that vocal about a separate system of personal and family law. Their claims, as formulated by the South African Hindu Maha Sabha, during the constitutional negotiations focused on general cultural and linguistic issues. See inter alia Document submitted to Theme Committee 4 of the MPNP by the Hindu Maha Sabha (given to us by Mr. Kalideen, president of that organization). The document addresses on the “Freedom of Religion” only issues of religious holidays and on “Language and Cultural Rights” the need for Hindu religious education, Indian languages in education as subjects, the need for an inclusive curriculum and finally, the need for a more substantial time slot on SABC. See also D. Chidester, Religions of South Africa, New York, Routledge, 1992, 167. Chidester States that the Muslim Judicial Council was founded in 1945 to further Muslim unity (without much success as was revealed by the numerous workshops organized by SALC in 1997). Throughout my research I had several interviews with Gordon Hollamby and also Hennie Potgieter, the previous and current researcher of SALC working on this project. The conflict between Muslim personal law and the common law regarding marriages situates itself in the following domains: different requirements for a valid marriage, the consequences of marriage, its dissolution, the maintenance obligations, custody, adoption, and succession.

The Implementation and Application Phase

251

340. Ryland v Edros, Supreme Court—Cape of Good Hope Provincial Division, 13 August 1996, 1997 (1) BCLR 1. 341. The man pursues an eviction claim against the woman who counterclaims for all kinds of financial aspects like arrears maintenance, a consolatory gift, and a part of the man’s estate as she alleges to have contributed in many respects to that estate. 342. See also K. Malan, “Oor Gelykheid en Minderheidsbeskerming na Aanleiding van Ryland v Edros en Fraser v Children’s Court, Pretoria North,” Tydskrif vir Hedendaagse Romeins-Hollanse Reg 1998, 302. 343. Ryland v Edros, 77. 344. Ryland v Edros, 93–94. 345. Malan, “Oor Gelykheid en Minderheidsbeskerming na aanleiding van Ryland v Edros en Fraser v Children’s Court, Pretoria North,” 302. 346. Fraser v The Children’s Court and Others, Constitutional Court of South Africa, CCT 31/96, 5 February 1997, 1997 (2) SA 261 (CC), 1997 (2) BCLR 153 (CC) (hereinafter: Fraser, CC, § . . . ). 347. Fraser, CC, § 21. 348. Fraser, CC, § 23. The Court underlines furthermore the difference in treatment by the Child Care Act between black customary marriages and “religious” marriages, including Muslim marriages. In this respect, it is also rather striking that the Recognition of Customary Marriages Bill was already before Parliament in September 1998 while the recognition of Muslim marriages still seems nowhere. 349. Malan, “Oor Gelykheid en Minderheidsbeskerming na Aanleiding van Ryland v Edros en Fraser v Children’s Court, Pretoria North,” 304. 350. Ibid., 307. 351. Ibid., 305. This rejection of majoritarianism or majority domination can be considered to be an extension of the rejection by the Constitutional Court of public opinion as determining factor in constitutional interpretation (ibid., 306). 352. Malan, “Oor Gelykheid en Minderheidsbeskerming na Aanleiding van Ryland v Edros en Fraser v Children’s Court, Pretoria North,” 312. See also Sachs J’s concurrence in the Gay Case where he underscores that “the scope of what is constitutionally normal is expanded to include the widest range of perspectives and to acknowledge, accommodate and accept the largest spread of difference . . . the Decision of this Court should be seen as part of a growing acceptance of difference in an increasingly open and pluralistic South Africa” (Gay Case, CC, §§ 134 and 138). 353. Malan, “Oor Gelykheid en Minderheidsbeskerming na Aanleiding van Ryland v Edros en Fraser v Children’s Court, Pretoria North,” 307. 354. See Amod v Multilateral Motor Vehicle Accident Fund, High Court—Durban and Coast Local Division, 1 December 1997, document as sent to the Constitutional Court. 355. Amod v Multicultural Motor Vehicle Accidents Fund, Constitutional Court of South Africa, CCT 4/98, 27 August 1998 (hereinafter: Amod, CC, § . . . ). 356. Amod, CC, § 22. 357. Amod, CC, §§ 33–35. 358. Hafiza Ismail Amod v Multilateral Motor Vehicle Accidents Fund, Supreme Court of Appeal, 29 September 1999, [www.uovs.ac.za], § 14. 359. Amod case, Supreme Court of Appeal, § 20. 360. Amod case, Supreme Court of Appeal, § 25.

252

Minority Protection in Post–Apartheid South Africa

361. According to Hennie Potgieter of SALC, they are in the process of compiling a discussion paper with a proposed draft Bill. It should be ready for publication by the end of July. It will once again be publicized for comment, which will place SALC in a position to align the draft Bill to the comments received and make its final recommendations to the Minister of Justice and Constitutional Development. It is difficult to predict when this will exactly happen (e-mail by Hennie Potgieter, dd. 17 April 2001). 362. Act no 120 of 1998, Government Gazette, 2 December 1998, No 99539. 363. Section 6 reads: “A wife in a customary marriage has, on the basis of equality with her husband . . . full status and capacity.” The Memorandum on the Objects of the Recognition of Customary Marriages Bill, 1998 does not only qualify the nature of the Bill as giving expression to the constitutional principle of section 15(3) and the “cultural pluralism guaranteed by sections 30 and 31 of the Constitution” but also postulates that the “Bill lays the foundation for a uniform code of marriage law that will be applicable to all South Africans. It provides a structure compatible with the future recognition of religious and other forms of marriages” (§ 2). 364. SALC, Issue Paper 15: Islamic Marriages and Related Matters, Pretoria, 2000, 7. 365. Ibid., 10. 366. Ibid., 13. 367. Ibid., 16. 368. Ibid., 21. 369. Ibid., 16–17. 370. Ibid., 22. 371. Ibid., 18–19. 372. See also the IFP’s wish to expedite the implementation of s 235, 1996 Constitution “in the best interests of all communities.” The IFP calls for an enhanced recognition of pluralism and argues that “we must devolve power to communities to enable them to make fundamental decisions about matters affecting their heritage, there is a close connection between the promotion of cultural diversity and the empowerment and uplifting of communities” (X, “IFP to Press for Self-Determination,” [www.anc.org.za/cgi-bin/shownews], 9 February 1999). This “government closer to the people” policy also ties in with the IFP’s demands for more provincial autonomy (cf. X, “Afrikaners Must Seek Autonomy outside a Separate State: Buthelezi,” [www.anc.org.za/cgi-bin/shownews], 16 February 1999). 373. See also A. Raath, “Self-Determination” in X (ed.), Seminar Report Aspects of Constitutional Development in South Africa: The First Working Draft of the Final Constitution, Johannesburg, KAS, 1995, 25, who enumerates several of these forms of self-determination in the assessment of an incremental approach to selfdetermination. 374. See inter alia X, “Afrikaners to Decide on Steps to Attain Freedom,” [www.anc.org.za/cgi-bin/shownews], 8 January 1997, where it is highlighted that the meeting/organization was not party-political, referring to the loss of political self-determination by the Afrikaner nation as well as the perceived threat to their Afrikaner identity. The Freedom Front uses inter alia the following two arguments to justify the need for a Volksstaat: “Afrikaners are the target of the ANC’s Redistribution programs, with so-called ‘Affirmative Action’ programs bringing about increasing unemployment as Afrikaners are replaced by others and were increasingly becoming impoverished” and “Afrikaans schools and other institutions of cultural association are increasingly swamped by others who conveniently use allegations of

The Implementation and Application Phase

375.

376.

377. 378.

379.

380.

381.

382. 383.

253

‘racism’ as a bulldozer, thereby threatening Afrikaans as a language and the various institutions existence. This is cultural imperialism by the masses, which is tantamount to destroying a nation by forced assimilation and acculturation, also known as ethnocide” (X, “What and Why a Volksstaat,” [www.vryheidsfront.co.za/ english/page17.html]). In the 1994 elections the Freedom Front, the only participating party that pursued a volkstaat ideal, obtained only 2.2 percent of the seats in the National Assembly, whereas the group of White Afrikaners constitutes approximately 5 percent of the entire population (SAIRR, Race Relations Survey 1994, 5, 12, 339). There are inter alia the Boerestaat Party and the Conservative Party, see X, “Parties Supporting Self-Determination Should Unite: CP,” [www.anc.org.za/cgi-bin/ shownews], 11 September 1998; X, “Boerevolk to Embark on Freedom Struggle, Leader Says,” [www.anc.org.za/cgi-bin/shownews], 6 January 1997. The FF has a rather elaborate program which is continuously updated and even accessible via the Internet, see the following footnotes for references. It should be remarked that in the run up to the 1999 elections, the FF has chosen to develop and adopt a full political program, which is not limited to self-determination, see interview with Corné Mulder, Spokesperson on Constitutional Affairs of the FF, Johannesburg, 30 January 1999. See inter alia X, “Short, Medium and Long Term Strategy,” [www.vryheidsfront. co.za/english/page8.html]; X, “The Constitutional Package of the Freedom Front for Afrikaner Self-Determination,” [www.vryheidsfront.co.za/ english/page11.html]. Interview with Corné Mulder, Spokesperson on Constitutional Affairs of the FF, Johannesburg, 30 January 1999. Corné Mulder, in an e-mail dd. 12 June 2001, indicated that the FF’s policy remains basically the same, but they will not be placing an over emphasis on Orania and the issue of the Volksstaat as they do not want to force this issue onto anyone. The party will have as its goal the accommodation of the legitimate ideals and aspirations of the Afrikaner people and all speakers of Afrikaans. See inter alia the keynote address by General Viljoen and the address of Piet Liebenberg, “The Concept Self-Determination, Types and Levels.” See also Professor Maritz’s contribution, “The Necessity of ‘Breathing Space’ as an ethno-dynamic factor.” Mr. Robbertze, member of the Volksstaat Council who made the Fifth Interim Report, underlined in his overview of the history of Afrikaner nationalism the importance of territory for Afrikaner freedom. He concludes that “[h]istory indicates that cultural and geographical self-determination is of cardinal and crucial importance to the Afrikaner” (Volksstaat Council, Fifth Report of the Volksstaat Council: The History of Afrikaner Self-Determination, Pretoria, Volksstaat Council, 1996, 35). It will in any event be necessary to make sure that culture is not used as proxy for race, as in the Potgietersrus case. See inter alia Volksstaat Council, Discussion Document on Self-Determination and the Working Draft of the New Constitution, 22 November 1995. Cf. the response of Professor Geldenhuys to the speech of Professor Bednarzyk at the Conference on Self-Determination organized by the Volksstaat Council, 6–7 March 1996, who underlined that it is suggested in South Africa that the granting of limited self-determination to Afrikaners would be tantamount to a violation of human rights and democratic principles in that it would represent a return to apartheid.

254

Minority Protection in Post–Apartheid South Africa

384. See inter alia Opinion of Professor Breytenbach in Volksstaat Council, Second Interim Report of the Volksstaat Council, September 1995, Pretoria, Volksstaat Council, 2.17. See also D. Geldenhuys, professor at RAU, “International Perspectives on Afrikaner Self-Determination,” who mentions the problem of where to locate foreign policy and the determination of international relations. 385. The First Interim Report already reflects a division in two broad groups, one in favor of a territory close to Pretoria and the other the northern cape regional approach. 386. It can be argued that the breaking away of an Afrikaner state could also seriously damage the economy of the rest of South Africa, unless it concerns a small area confined to rural and sparsely populated areas. 387. The several reports of the Volksstaat Council mention autonomous areas where there are relative concentrations of Afrikaners and for the rest of the territory civic or cultural councils, which should pursue the cultural, educational and social interests of the Afrikaners in these areas. 388. The First Interim Report of the Volksstaat Council puts forward that there would be a protection of minorities within the future Volksstaat on the basis of human rights, minority rights, and self-determination—reflecting once more an understanding of the interrelatedness of these three categories of rights. 389. See its Third Interim Report and “Intern Verslag Volksstaat Council, 22 August 1996,” given to me by Carel Boshoff (iv), a member of the Council. 390. See inter alia Accord on Afrikaner Self-Determination between the Freedom Front, the African National Congress and the South African Government/National Party, 23 April 1994. 391. Cf. the Freedom Front underscored in its First Formal Proposal on Afrikaner State, 1 September 1996, that “country wide forms of territorial and cultural autonomy made out an important part of the FF’s recently adopted SelfDetermination plan.” 392. See X, “Short, Medium and Long Term Strategy,” [www.vryheidsfront.co.za/ english/page8.html]. 393. H. Strydom, “Rehabilitering van die Reg op Selfbeskikking,” Tydskrif vir SuidAfrikaanse Reg 2000, 354–357. 394. See inter alia interview with Mr. J. Beukman, member of the Department of Constitutional Development of South Africa, Leuven, 2 September 1998. Cf. X, The Constitutional Proposals of the Volksstaat Council—Sixth Report of the Volksstaat Council, Pretoria, Volksstaat Council, 1996, 29. 395. Schedule 6 “Transitional Arrangements,” section 20 (5), 1996 Constitution. 396. X, “Volksstaat Council Disbands,” [www.anc.org.za/cgi-bin/shownews], 30 March 1999. 397. The Freedom Front describes itself as “a party for Afrikaners which believe in selfdetermination and a Volksstaat. The aim of the party is to achieve freedom for the Afrikaner within their own state, while also taking care of the interest of those residing outside its borders” (X, “Who and What Is the Freedom Front?” [www. vryheidsfront.co.za/english/page 18.html], 1). 398. See inter alia, X, “FF and ANC to Discuss Afrikaner Self-Determination,” [www.anc.org.za/cgi-bin/shownews], 14 July 1997. 399. See inter alia First Commentary of the Freedom Front on: Afrikaner SelfDetermination and the Way Forward, a Facilitator’s Proposal of 6 February, 1996, 9 February 1996; Bi-Lateral Negotiations between the ANC and the Freedom

The Implementation and Application Phase

400. 401.

402.

403. 404. 405. 406. 407. 408. 409. 410. 411. 412. 413.

414. 415.

255

Front—February 1996, 22 February 1996; A Freedom Front’s View on The Possible Contents of a New Accord between the Freedom Front and the ANC, 22 February 1996. Inter alia “Afrikaner Volksstaat. Wagons Rumbling through the Karoo,” [www. fm.co.za/98/0717/currents/volks.htm], 17 July 1998, 1–3. This point was made several times in the various interim reports of the Volksstaat Council, inter alia Volksstaat Council, Self-Determination in International Context, Fourth Interim Report of the Volksstaat Council, iii; X, “Violence for SelfDetermination Might Be Just: Volksstaat Council,” [www.anc.gov.za/cgi-bin/ shownews], 20 November 1997; X, “Government Has Failed to Address Afrikaner Self-Rule Issue: FF,” [www.anc.gov.za/cgi-bin/shownews], 26 October 1997. See also Interview Corne Mulder, Spokesperson on Constitutional Affairs of the FF, Pretoria, 16 February 1998. An example of another private initiative is the Boere Republic in Balmoral, Mpumalanga but there the interaction with the municipal authorities is different and more problematic, see inter alia X, “Boere Republic Okay, As Long As Local Government in Charge: Official,” [www.anc.org.za/cgi-bin/shownews], 14 October 1997; X, “No Sign to Show Way to Boere Republiek: Mthembu,” [www.anc.org.za/ cgi-bin/shownews], 22 October 1997. Avstig Inligtingsblad, 1992 (document received from Carel Boshoff (iv), Oriana’s main representative in negotiations with government). Inter alia brochure entitled Orania Die Eerste ware Volksstaatdorp, published by Vriende van Orania. X, “Orania Residents Remain Positive That They Will Be Independent,” [www.anc. org.za/cgi-bin/shownews], 5 March 2000. X, “Friends of Orania, Newsletter NR 15,” [www.orania.co.za/foo_15.htm], May 1998. X, “Orania: Afrikanervryheidstigting Disappointed,” [www.anc.org.za/cgibin/shownews], 17 December 1999. X, “Orania Residents to Meet Minister,” [www.anc.org.za/cgi-bin/shownews], 23 February 2000. X, “Orania Representatives Meet Northern Cape Premier,” [www.anc.org.za/cgibin/shownews], 13 October 2000. X, “Talks Continue to Resolve Orania’s Demands: Netshitenzhe,” [www.anc.org.za/ cgi-bin/shownews], 22 November 2000. X, “Orania Council to Remain in Place Indefinitely,” [www.anc.org.za/cgi-bin/ shownews], 4 December 2000. X, “Mufamadi to Meet Orania Representatives,” [www.anc.org.za/cgi-bin/ shownews], 12 March 2001. X, “Government Sets up Committee on Orania,” [www.anc.org.za/ cgi-bin/shownews], 4 June 2001. See also interview with Carel Boshoff iv (junior), Orania’s main representative in negotiations with government, 6 May 2001, Johannesburg. Section 211 (3), 1996 Constitution. See also V. Bronstein, “Reconceptualising the Customary Law Debate in South Africa,” South African Journal of Human Rights 1998, 403. Bronstein argues that the customary law debate would not be “so much about a conflict between equality and culture but rather an intra-cultural conflict” or a conflict “between two different interest groups battling to retain/change power relations within their very culture—a

256

416. 417. 418. 419. 420.

421.

422. 423. 424. 425.

426. 427.

428.

Minority Protection in Post–Apartheid South Africa

culture which is constantly evolving.” Consequently, she argues that courts should give preeminence to equality so as to transform certain traditional institutions without destroying them (ibid., 404–405). Cf. P.F. Iya, “Culture As a Tool of Division and Oppression: Towards a Meaningful Role for Culture and Customary Law in a United South Africa,” Comparative and International Law Journal of Southern Africa 1998, 240. X, “Bill Accords Equal Status to Customary and Civil Marriages,” [www.anc.org.za/ cgi-bin/shownews], 18 September 1998. X, Harmonisation of the Common Law and the Indigenous Law—Customary Marriages, Project 90, Issue Paper 3, 1996, 3–4. Ibid., 4. Ibid. For a good overall discussion of the Act, see “The Recognition of Customary Marriages Act of 1998: A Commentary,” Tydskrif vir Hedendaagse Romeins-Hollandse Reg 2000, 509–516. For certain critical comments, see E. Bonthuys & M. Pieterse, “Still Unclear: The Validity of Certain Customary Marriages in Terms of the Recognition of Customary Marriages Act,” Tydskrif vir Hedendaagse Romeins-Hollandse Reg 2000, 616–625. Recognition of Customary Marriages Act, section 2. It should be remarked that at the same time another bill was introduced ensuring that also spouses to a valid customary marriage would benefit from the application of the general law of succession: Amendment of Customary Law of Succession Bill, section 2 (see also Memorandum on the Objects of the Amendment of Customary Law of Succession Bill, 1998, § 2). Recognition of Customary Marriages Act, section 3 (1). Recognition of Customary Marriages Act, section 3 (6). Recognition of Customary Marriages Act, section 1 (ii). Recognition of Customary Marriages Act, section 6: “A wife in a customary marriage has, on the basis of equality with her husband and subject to the matrimonial property system governing the marriage, full status and capacity.” Memorandum on the Objects of the Recognition of Customary Marriages Bill, 1998, § 1, “Main Objects of the Bill.” Cf. A. Akkinnusi, “The Consequences of Customary Marriages in South Africa: Would the Recognition of Customary Marriages Act, 1998 make any difference?” Journal for Juridical Science 2000, 143–154. See also X, “Customary Marriages Bill Imposes Western Values,” [www.anc.org.za/cgi-bin/shownews], 16 October 1998, where it is said that two university lecturers criticize the Bill because it would dilute customary law and does not take into account that patriarchy played an important role in customary law and marriage. It is interesting in this respect that the IFP during the debates in the National Assembly described this feature of the bill as amounting to the “slow but certain emasculation and strangulation of customary marriages” whereas in the NCOP the party expressed its total support for this “progressive bill seeking to give a far better deal to women” (X, “IFP Has Second Thoughts on Marriage,” [www.anc.org.za/cgi-bin/shownews], 11 November 1998). Cf. X, “Spotlight on Customary Marriages at CONTRALESA Meeting,” [www.anc. org.za/cgi-bin/shownews], 11 November 1998. Memorandum on the Objects of the Recognition of Customary Marriages Bill, 1998, § 2.

The Implementation and Application Phase

257

429. SALC remarks in its Annual Report 2000 that the name of the project should be changed from Harmonisation of the Common Law and Indigenous Law to Customary Law, as that would be a more appropriate description of the work of the relevant project committee. The aim of the project is in any event to ensure the orderly development of customary law as a component of the plural legal system in a way that is compatible with the Constitution. Other issues of preferential treatment are the Law of Succession and Traditional Courts. 430. SALC, The Harmonisation of the Common Law and the Indigenous Law—Conflicts of Law, Project 90, Discussion Paper 76, Pretoria, SALC, April 1998. 431. It should be remarked that section 1(1) of the Law of Evidence Amendment Act of 1988 made two important changes, namely the removal of the racial criterion and the extension of the sphere of application of customary law is extended to all courts. 432. SALC argues that since “s 211(3) of the Constitution expressly states that application of customary law is subject to the Bill of Rights. In view of this provision, the repugnancy proviso is now redundant to any inquiry into the constitutional validity of customary rules” and should thus be repealed (SALC, The Harmonisation of the Common Law and the Indigenous Law—Conflicts of Law, Project 90—Discussion Paper 76, Pretoria, SALC, 1998, 41). 433. Law of Evidence Amendment Act, 1988, section 1(1). 434. SALC, The Harmonisation of the Common Law and the Indigenous Law—Conflicts of Law, 35. 435. Ibid., 25. See for a more in depth discussion of the factors determining the application of customary law: C. Himonga & C. Bosch, “The Application of African Customary Law under the Constitution of South Africa: Problems Solved or just Beginning?” South African Law Journal 2000, 314–331. 436. Ibid., 21. 437. Ibid. 438. Ibid., 22. 439. Ibid., 23. 440. Ibid., 35. 441. SALC, Annual Report 2000, Pretoria, SALC, 40. 442. Moseneke and others v Master of the High Court, Constitutional Court of South Africa, § 27: “agreed that a period of two years would be appropriate to enable Parliament to review the whole field of succession and administration of deceased estates in an harmonious and effective manner which would fully respect the rights entrenched in the Constitution. The difficulty was how to protect rights in the interim period. . . . The order that this Court makes as a temporary measure gives all African families a choice in circumstances where a member of the family dies intestate and the estate is not governed by the principles of customary law.” 443. See also SALC, Annual Report 2000, Pretoria, SALC, 39–40. 444. It is relevant to note that the Transkei Division of the High Court decided that the constitutional requirement of judicial independence and separation of powers did not apply to the tribal courts, including the regional authority courts, since “[t]he believers in and adherents of African Customary Law believe in the impartiality of the chief or king when he exercises his judicial functions. The imposition of anything contrary to this outlook would strike at the very heart of the African customary legal system, especially the judicial facet thereof. This would be completely at variance with the provisions of sections 31, 33(3) and 181(1) of the Constitution”

258

445.

446. 447. 448.

449.

450. 451. 452.

453. 454.

455.

456. 457.

Minority Protection in Post–Apartheid South Africa

(Bangindawo and Others v Head of the Nyanda Regional Authority and Another; Hlantlalala v Head of the Western Tembuland Regional Authority and Others, High Court—Transkei Division, 13 February 1998, 1998 (3) BCLR 314 (Tk) 327 E-F). See inter alia Mthembu v Letsela and Another, High Court—Transvaal Provincial Division, Case No 8630/95, 21 November 1996, 1997 (2) SA 936 (hereinafter Mthembu v Letsela, HC, § ); Mani v Mani, Transkei Supreme Court, CA1R98/92, 1 February 1996, 1996 (3) All SA 42 (T); Hlophe v Mahlalela and Another, High Court–Transvaal Provincial Division, 13084/95, 21 April 1997, 1998 (1) SA 449. Mthembu v Letsela, HC, 944-B. Mthembu v Letsela, HC, 945-E/F. Mthembu v Letsela, HC, 946-B. For a discussion of this case, see I.P. Maithufi, “The Constitutionality of the Rule of Primogeniture in Customary Law of Intestate Succession,” Tydskrif vir Hedendaagse Romeins-Hollandse Reg 1998, 142–147. Cf. SALC, Discussion Paper 93 on Succession in Customary Law, Pretoria, SALC, 2000, vii–viii. See also G.J. Van Niekerk, “Indigenous Law, Public Policy and Narrative in the Courts,” Tydskrif vir Hedendaagse Romeins-Hollandse Reg 2000, 407–409 and 416. Remuneration of Public Office Bearers Act, No 20 of 1998, Government Gazette, 23 September 1998, No 19274, section 5(1). Remuneration of Public Office Bearers Act, section 5(4). Remuneration of Public Office Bearers Act, sections 8(6) and 9(6). Holomisa, the President of the Congress of Traditional Leaders of South Africa (Contralesa), voiced strong criticisms in these regard (interview, Cape Town, 23 March 1998). Remuneration of Public Office Bearers Act, section 5 (3)(a) and (b). Document received from Danie Van der Merwe, member of the Anthropology Directorate of the Chief Directorate on Traditional Affairs, entitled Meeting with Chief Director Traditional Affairs, Minutes, 12 February 1997. The 29 April 2000 Discussion Document towards a White Paper on Traditional Leadership and Institutions of the Department of Justice and Constitutional Development acknowledges that the exact role of this institution in the current democratic context remains unclear. The White Paper Process is intended to resolve this matter. The Discussion Document briefly looks at experiences of other African states in this respect and also investigates the implications of international human rights on the institution of traditional leadership. Especially at local government level there is a clear overlap in functions between traditional leadership and elected local authorities and their relationship still needs to be clarified. The sensitivities involved in the White Paper Process both explain the delays in the process while revealing a certain reluctance to make certain decisions. This body was renamed the National Khoisan Council in March 2001. Similar fora are being developed for the San and the Nama. See also Interview Kitchin, member of the Chief Directorate on Traditional Affairs, Department of Constitutional Development, 19 February 1998. See also X, “Media Statement by Minister V. Moosa, Minister for Provincial Affairs and Constitutional Development on the Conference on the Constitutional Accommodation of Vulnerable Indigenous Communities in South Africa,” [www.anc.org.za/cgi-bin/shownews], 24 May 1998. In March 2001 the Opening Ceremony of the National Khoisan Consultative Conference took place, which was described as a watershed inter alia because it demonstrated the continuing strength of the Khoisan identity: X,

The Implementation and Application Phase

458.

459.

460.

461. 462. 463. 464. 465. 466. 467.

468.

259

“Address by Deputy President Jacob Zuma to the Opening Ceremony of the National Khoisan Consultative Conference,” [www.anc.org.za/cgi-bin/shownews], 29 March 2001. X, “Media Statement by Minister V Moosa, Minister for Provincial Affairs and Constitutional Development on the Conference on the Constitutional Accommodation of Vulnerable Indigenous Communities in South Africa,” [www.anc.org.za/cgibin/shownews], 24 May 1998. This resolution forms part of the Report made by the Department of Constitutional Development on the Conference regarding the Constitutional Accommodation of Vulnerable Indigenous Communities in South Africa—Upington—May 1998. Act No 117 of 1998, Government Gazette, 18 December 1998, No 19614. Opposition parties doubt the constitutionality of this Act but not on the basis of this feature though. They “contend that the Bill impinges on the independence of the local government sphere and amounts to a centralization of power at this level (X, “ANC, Opposition Clash Sharply on Local Government Bill, [www.anc.org.za/cgi-bin/ shownews], 3 November 1998) and are considering to challenge the constitutionality of this Act before the Constitutional Court (X, “Municipal Structures Act Passed But Set for the Constitutional Court,” [www.anc.org.za/cgi-bin/shownews], 23 December 1998). X, “White Paper Unveils Integrated Plan for Local Government in South Africa, [www.anc.org.za/cgi-bin/shownews], 10 March 1998. Section 81 (4) allows indeed for “own” provincial policy as to the role of traditional leaders in the affairs of a municipality. Local Government Municipal Structures Act, section 81 (1). Local Government Municipal Structures Act, section 81 (3). SALC, Annual Report 2000, Pretoria, 2000, 40. SALC, Discussion Paper 82: Traditional Courts and the Judicial Function of Traditional Leaders, Pretoria, SALC, May 1999, Summary of Recommendations. See inter alia X, “Zulu Chiefs threaten to Boycott Local Government Elections,” [www.anc.org.za/cgi-bin/shownews], 5 May 2000; X, “Local Government Election Delayed over Traditional Leaders’ Objections,” [www.anc.org.za/cgi-bin/ shownews], 30 September 2000; X, “Mbeki pledges to Resolve Erosion of Chiefs’ Powers,” [www.anc.org.za/cig-bin/shownews], 10 October 2000; X, “Amakhosi accuse government of Deliberate Delays,” [www.anc.org.za/cgi-bin/shownews], 28 May 2001; X, “Zulu King to Lodge Complaints over Amakhosi with Baqwa,” [www.anc.org.za/cig-bin/shownews], 16 May 2001. The three provinces where there is no provincial House of Traditional Leaders are the Northern Cape, the Western Cape, and Gauteng as there are no traditional leaders present. This situation might however change for the Western Cape, if the Khoi and Griqua communities there effectively choose to be accommodated in that way. The relevant pieces of legislation establishing the six Houses of Traditional Leaders are for the Free State Province, House of Traditional Leaders Act (Free State), No 6 of 1994, Orange Free State Province: Provincial Gazette, 17 October 1994, No 44; House of Traditional Leaders for the Province of the North-West Act, No 12 of 1994, North-West Provincial Gazette, 4 November 1994, No 69; Eastern Transvaal House of Traditional Leaders Act, No 4 of 1994, The Province of the Eastern Transvaal Provincial Gazette, 23 December 1994, No 16; Kwazulu Natal Act on the House of Traditional Leaders, No 7 of 1994, The Provincial Gazette of

260

469. 470. 471. 472. 473.

474.

475. 476.

477. 478.

479.

Minority Protection in Post–Apartheid South Africa

Kwazulu-Natal, 15 November 1994, No 4999; House of Traditional Leaders Act (Eastern Cape), No 1 of 1995, Province of the Eastern Cape Provincial Gazette, 27 March 1995, No 46, and Northern Transvaal House of Traditional Leaders Act, No 6 of 1994, The Province of Northern Tranvaal Provincial Gazette, 13 January 1995, No 17. Interview with Ndou, chief directorate Traditional Affairs, Department of Constitutional Development, Pretoria, 19 February 1998. Council of Traditional Leaders Act, No 10 of 1997. Council of Traditional Leaders Amendment Act, No 85 of 1998, Government Gazette, 30 October 1998, No 19409. Council of Traditional Leaders Act, 1997, section 7. Document given to me by Ando Donkers from the Department of Constitutional Development and entitled Speech Delivered by Minister Moosa: Debate on the Council of Traditional Leaders Bill, National Assembly, 29 March 1997. Document received from Ando Donkers, member of the Department of Constitutional Development entitled Speech Delivered by Minister MV Moosa During the Debate on the Council of Traditional Leaders Bill, National Assembly, 20 February 1997. See interviews with the President of Contralesa, P. Holomisa, Cape Town, 15 April 1996, 17 February 1997 and 23 March 1998. See inter alia, Draft Report Prepared by the Arts and Cultural Task Group for the Ministry of Arts, Culture, Science and Technology, April 1995 which points out that one of the tasks of the ministry is to “affirm and promote the rich and diverse expression of South African culture” (Ibid., 57) and states that “all communities— including the poor and minority groups—have the right to conserve and develop their heritage and should have an equal opportunity to do so” (Ibid., 81) and also “Community Arts and Culture Development Policies should, therefore, be developed and shaped in recognition of this statement—the redressing of past inequities which denied the growth and emergence of community creative arts and cultural expression, primarily in black communities” (Ibid., 175). These principles are furthermore confirmed and developed in the 1996 Annual Report of the DACST and the 1996 White Paper on Arts, Culture and Heritage of DACST [www.polity. org.za/govdocs/ white_papers/arts.html]. DACST, 1998 Program. Selected Activities, Pretoria, DACST, 1998, 5. See also X, “Assembly Approves Heritage Bills,” [www.anc.org.za/cgi-bin/ shownews], 23 February 1999. National Heritage Resource Act, no 25 of 1999 underlines inter alia in its preamble that “our heritage celebrates our achievements and contributes to redressing past inequities” (see also section 5(1) (c)). Section 3, subsection 3 furthermore clarifies that “a place or object is to be considered part of the national estate if it has cultural significance or other special value because of (a) its importance in the community, or pattern of South Africa’s history . . . (e) its importance in exhibiting particular aesthetic characteristics valued by a community or cultural group; . . . (g) its strong or special association with a particular community or cultural group for social, cultural or spiritual reasons.” These factors evidently are geared towards the accommodation of the cultural population diversity in the country. DACST, 1998 Program, 11.

The Implementation and Application Phase

261

480. Ibid., 12. See also SAIRR, South African Survey 1997–98, 343. In May 2001 the Council of Culture Ministers indicated that all heritage institutions, including museums, were in line for a major revamp. Furthermore, stricter measures would be used in terms of performance agreements to outline the space and form of transformation: X, “MINMEC to Revamp Heritage Institutions,” [www.anc.org.za/cgi-bin/shownews], 12 May 2001. 481. DACST, 1998 Program, 14. Cf. DACST, The Portfolio of Legacy Projects: A Portfolio of Commemorations Acknowledging Neglected or Marginalised Heritage— Discussion Document, Pretoria, DACST, 1998, 43. See also [www.dacst.gov.za/ arts_culture/culture/development/index.htm]. 482. DACST, 1998 Program, 17. See also for an enumeration of the various projects that have been launched DACST, Culture in Community: Arts and Culture RDP Projects, Pretoria, DACST, 1998, 7-33. See also [www.dacst.gov.za/arts_culture/ culture/community_arts_centres]. 483. Independent Broadcasting Authority Act, No 153 of 1993, section 3. For a brief discussion of the IBA, see D. Van Wyk, “Introduction to the South African Constitution,” 152–155. 484. Independent Broadcasting Authority Act, No 153 of 1993, section 2 (a). 485. Independent Broadcasting Authority Act, No 153 of 1993, section 2 (e)(i). 486. X, “The Independent Broadcasting Authority,” [wn.apc.org:80/iba]. 487. See inter alia X, “SABC Might Increase Religious Programs: Naidoo,” [www.anc.org.za/cgi-bin/shownews], 29 October 1997; X, “New Bill No Threat to Religious Broadcasters Says Naidoo,” [www.anc.org.za/cgi-bin/shownews], 28 August 1998. 488. See also Giliomee who argues that “[w]ith nearly all the provinces coinciding with different ethnic concentrations a limited measure of federalism allows the ANC to bestow patronage and accommodate ethnicity as a carefully controlled form of subnational identification” (Giliomee, “The Majority, Minorities and Ex-Nationalities in South Africa and the Proposed Cultural Commission,” 38). 489. Cf. J. Wehner, What Is the Future of South Africa’s Provinces? Discussion Paper Series, Cape Town, AFREC, 1997, 2. 490. E-mail from Professor Breytenbach, Political Science, Stellenbosch University, 6 November 1998. See also M. Ray, “Moosa hints at Change in Local Government,” The Sowetan, 9 February 1999, who remarks that according to Minister Moosa “a redefinition of the power of local and provincial government authorities will be a priority of central government in the post-election period.” See also e-mail from Johan Beukman, member of the department of Constitutional Development dd. 30 April 2001. 491. See also E.F.J. Malherbe, “Provinsiale Grondwette: ’N Barometer van Provinsiale Outonomie?” T.S.A.R. 1998, 355, who underlines that it would be shortsighted if none of these provinces were to adopt their own constitutions as it would imply that they are not using the potential to give more concrete shape to their autonomy. 492. The national ANC intervened for example in the removal and appointment of the provincial premier of the Free State and of Gauteng. See inter alia X, “ANC Could Lose More Provinces: Lekota,” [www.anc.org.za/cgi-bin/shownews], 10 February 1999; X, “ANC Provincial Premierships in the Hands of the President,” Financial Mail, 2 February, 1999; K. O’ Gready, “ANC ‘Ordered MEC’s Return’,” Business Day, 28 January 1999.

262

Minority Protection in Post–Apartheid South Africa

493. There was, for example, strong criticism of the NP against the Public Service Bill 1998 as it purportedly reduces the powers granted to provincial governments substantially in this respect, see X, “Strong NP Opposition to Public Service Bill: NP Leader,” [www.anc.org.za/cgi-bin/shownews], 31 August 1998; X, “Public Service Bill Approved,” [www.anc.org.za/cgi-bin/shownews], 23 September 1998. The NP has subsequently challenged the constitutionality of the Public Service Law Amendment Act, No 86 of 1998, before the Constitutional Court, the first hearing of which was 23 February 1999 (CCT 26/98). 494. X, “Bill Aims to Vest Power to Call Poll with Presidency,” [www.anc.org.za/cgibin/shownews], 23 September 1998. See also X, “Constitutional Amendment Bills Deferred,” [www.anc.org.za/cgi-bin/shownews], 3 November 1998 where it is pointed out that the IFP, DP, and NP are all opposed to that provision in one of the bills to amend the constitution that aims to do exactly that. Cf. X, “Constitutional Amendments for Poll Proclamations Approved,” [www.anc.org.za/cgi-bin/ shownews], 4 March 1999, where it is remarked that a compromise was reached between the ANC and the opposition parties that “the contentious issue of whether the president should take over premier’s powers to proclaim provincial polls should remain on hold.” 495. Venter points to the potential conflictual situation inherent in the non-obvious distinction made between cultural matters and provincial cultural matters, the first of which is a concurrent competence while the last one an exclusive provincial one (Venter, “The Protection of Cultural, Linguistic and Religious Rights: the Framework Provided by the Constitution of the Republic of South Africa, 1996,” 23–24). 496. Copy of the amendments of the IFP obtained from Professor W. Breytenbach, Stellenbosch University. See also X, “IFP Wants Prime Minister Post Put in Constitution: Moosa,” [www.anc.org.za/cgi-bin/shownews], 4 August 1998; X, “Devolve Power to Provinces: Buthelezi,” [www.anc.org.za/cgi-bin/shownews], 6 July 1997. 497. X, “Provinces Not Using NCOP: Mbeki,” [www.anc.org.za/cgi-bin/shownews], 8 May 1998. 498. White Paper on Local Government, Pretoria, Ministry for Provincial Affairs and Constitutional Development, March 1998, 54. 499. X, “Local Government Reps to be part of NCOP at Parly opening,” [www.anc.org.za/ cgi-bin/shownews], 6 February 1998. 500. White Paper on Local Government, 1. 501. Section 156 of the 1996 Constitution plus schedules 4 and 5 to this Constitution. 502. Local Government Municipal Structures Act, section 83 (1) reads: “A municipality has the functions and powers assigned to it in terms of sections 156 and 229 of the Constitution.” 503. The IFP formulated strong criticism against the Local Government White Paper on these issues: “[T]he White Paper clearly spells it out: national uniformity is of paramount importance. There is no room for provincially determined variations or local options; there is no space for independent provincial initiatives in regard to policy concerning local government” (X, “IFP and NP Criticise ANC on Local Government in Kwanatal,” [www.anc.org.za/cgi-bin/shownews], 26 May 1998). 504. Inter alia interview with Corne Mulder (FF), Johannesburg, 30 January 1999. 505. A rather indirect but still important measure which enhances power-sharing possibilities is section 236 of the 1996 Constitution and its requirement that national legislation provide for the funding of political parties in national and provincial legislatures on an

The Implementation and Application Phase

506. 507.

508.

509.

510.

511.

512.

513.

263

equitable and proportional basis. Since the equity portion of the funding is aimed at meeting basic needs that parties have in common, it will in effect give smaller parties a relatively larger share than their proportion of voter support. Consequently, the size of the equity portion versus the proportional portion is the subject of dispute in the process of developing the implementing legislation (X, “Committee Decides on Party Funding Split,” [www.anc.org.za/cgi-bin/shownews], 3 September 1998). For a further nuance, see X, “Only Political Parties In Parliament to Get State Funds,” [www.anc.org.za/cgi-bin/shownews], 17 August 1998. See inter alia X, “Mid Year Racial Clash at Free State University,” [www.anc.org.za/cgi-bin/shownews] 4 June 1997; X, “Two Pupils Arrested After Race War Erupted at Durban School,” [www.anc.org.za/cgi-bin/shownews] 5 May 1998; X, “Racial Tensions at Vryburgh High School,” [www.anc.org.za/cgi-bin/ shownews] 25 February 1998; X, “Racism Still Rife in SA Schools: Asmal,” [www.anc.org.za/cgi-bin/shownews], 29 November 1999. X, “Blaauw Asked to Furnish Details of Racism Claims,” [www.anc.org.za/cgibin/shownews] 30 December 1998; X, “Probe Launched into Racism in the SAPS,” [www.anc.org.za/cgi-bin/shownews], 6 November 1998; X, “Independent Body to Probe Claims of Racism in the Police: Mufamadi,” [www.anc.org.za/cgi-bin/ shownews], 22 July 1998. Koen exposes furthermore the racial bias and ethnocentrism that is manifested in the way in which judicial officers talk to or about people of color in the post-apartheid era (R. Koen, “The Language of Racism and the Criminal Justice System,” South African Journal of Human Rights 1995, 102–122. X, “ANC Makes Race an Election Issue: DP,” [www.anc.org.za/cgi-bin/shownews], 27 November 1998; X, “ANC Lambasts NP MP over Racist Remark,” [www.anc.org.za/cgi-bin/shownews], 5 September 1998; X, “Parties Call on ANC Officials to Refrain from Hate Speech,” [www.anc.org.za/cgi-bin/shownews], 18 June 1998; X, “The Continued Use of Race by Politicians Can Promote Racial Division,” [www.anc.org.za/cgi-bin/shownews], 17 November 1997; X, “Odendaal Apologises to Jewish Community,” [www.anc.org.za/cgi-bin/shownews], 15 May 1997. See also X, “Leon Warns on Race Card,” [www.anc.org.za/cgi-bin/shownews], 8 April 2001. Cf. Smith, “The Case for Mbeki-style Africanism,” 3. Smith underlines that “[t]o believe that South Africa will lose its obsession with race after being force-fed a diet of racial hatred and mistrust for close to five decades within three years of democratic elections, is naively optimistic.” X, “Racism Still Haunts South Africa,” [www.anc.org.za/cgi-bin/shownews], 14 December 2000; X, “Mass Movement Needed against Racism,” [www.anc.org.za/cgi-bin/shownews], 13 February 2001. See also the amazing story of a right-wing millionaire who would be recruiting apartheid-era security agents and white farmers to wreck the next elections and reimpose white rule: K. Pech, “Right-Wing Millionaire’s Plot to Bring Back White Rule,” Electronic Mail & Guardian 25 September 1998. The Human Rights Commission is furthermore investigating racism in the media (X, “HRC to Probe Media Racism,” [www.anc.org.za/cgi-bin/shownews], 12 November 1998). X, “St Lucia Signs Covenant Promising to End Racism,” [www.anc.org.za/cgibin/shownews], 2 October 2000. These hearings resulted in a list of complaints of visitors to the town who claimed to have been discriminated against because of their race. South African Human Rights Commission, Racism, Racial Integration and Desegregation in South African Public Secondary Schools, Johannesburg, February 1999, 120 p.

264

Minority Protection in Post–Apartheid South Africa

514. South Africa launched its National Plan for the Protection and Promotion of Human Rights on 10 December 1998. The NAP is described in the Government Communications’ press release on this issue as an instrument for evaluating our performance with regard to our international human rights obligations and a tool for setting human rights goals and priorities within achievable time frames. South Africa has (inter alia) ratified the following relevant international conventions: the Convention on the Rights of the Child, the African Charter on Human and Peoples’ Rights, the ICCPR, the Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, and the Convention on the Prevention and Punishment of the Crime of Genocide. The ICESCR is already signed but not yet ratified. 515. Having good and promising constitutional foundation stones is very important but “the key question is how all these constitutional measures are to be implemented. What is their legal purport, how are they to be put to work to ensure the protection and advancement of the interests involved?” (Venter, “The Protection of Cultural, Linguistic and Religious Rights: the Framework Provided by the Constitution of the Republic of South Africa, 1996,” 19). 516. For a critical assessment of the slogan “unity in diversity” as used by the ANC government, see also R. Greenstein, “Education, Identity and Curriculum: Policies in the New South Africa,” 129: “[t]o define the goal as unity in diversity presumes that all the various differences and needs are mutually reconcilable, and that in combination they would of necessity lead to national unity. In other words, this approach recognizes diversity and difference only when they behave according to the expectations held of them. Effectively, this means that the concept of diversity loses much of its meaning as it comes to refer to no more than an internal and subordinate aspect of pre-existing national unity.” 517. To give some examples: the Muslim community complains about the lack of recognition of Muslim marriages, and the Committee of Marginalised African Languages, comprised of speakers of Tsonga, Venda, Ndebele and Siswati, has asked PANSALB for help regarding its wish for a fairer share for these languages on public television as well as for assistance to expand mother-tongue education in these languages (cf. Giliomee, “The Majority, Minorities and Ex-Nationalities in South Africa and the Proposed Cultural Commission,” 41–42). 518. As Venter underscores: “[C]onstitutional and governmental respect for the reality of cultural diversity and fair cultural policies would be the most effective incentive for the evolvement of the critical mass of common loyalty required for nationhood and for the firm establishment of a common legal, governmental and administrative culture” (Venter, “The Protection of Cultural, Linguistic and Religious Rights: the Framework Provided by the Constitution of the Republic of South Africa,” 20). 519. See also W. Rudolf, “Minority Protection and Multiculturalism in Europe” in X (ed.), Seminar Report: The Constitutional Protection of Multiculturalism, Johannesburg, KAS, 35. Rudolf argues that “[t]he South African Constitution contains the legal prerequisites in its wording to solve the minority questions satisfactorily in the sense of a multi-cultural society.” 520. See also Sachs J’s concurrence in the Gay Case at § 131: “[i]t is no exaggeration to say that the success of the whole constitutional endeavor in South Africa will depend in large measure on how successfully sameness and difference are reconciled.”

Conclusion

EVALUATION OF SOUTH AFRICA’S EXPERIENCES IN TERMS OF THE INTERRELATION BETWEEN INDIVIDUAL HUMAN RIGHTS, MINORITY RIGHTS, AND THE RIGHT TO SELF-DETERMINATION Several recent developments have underscored the need for an improved theoretical framework on how to accommodate in the most appropriate way the population diversity within plural states. This book therefore focuses on the means to devise an adequate system of minority protection, while “minority protection” is understood in the broad sense of the accommodation of the population diversity in states. Indeed, following the working definition of the concept “minority” used in this book, the various population groups in a plural state can be considered “minorities” insofar as they have separate, distinctive ethnic, religious and/or linguistic characteristics, are numerically smaller than the rest of the population, are non-dominant, and have the wish to preserve their own identity. It seems preferable. In the first chapter, the theme of the interrelation between the three categories of rights in order to achieve an adequate system of minority protection is developed and analyzed. I attempted to demonstrate that the acquis of the first category of rights, individual human rights, is taken up, furthered, and brought closer to the goal of minority protection by the next category, minority rights, in that these deal more explicitly with essential concerns for minorities and thus with their right to identity. Finally, the right to self-determination, mainly in its internal dimension, is turned to, as it seems to take up and extend the acquis of both individual human rights and minority rights, while enhancing the protection and promotion of the right to identity of minorities. The right to self-determination

266

Conclusion

cannot only be considered as the basis and conditio sine qua non for individual human rights but minority rights (and to some extent even individual human rights) are also considered forms of internal self-determination. Nevertheless, the right to self-determination tends to enhance the respect for and acknowledgement and promotion of the group dimension, which is such a crucial aspect of the minority phenomenon and thus of the minorities’ right to identity. Overall, it seems justified to conclude that individual human rights, minority rights, and a right to (internal) self-determination would all three be needed and would interrelate for the elaboration of an adequate system of minority protection. The rest of this book is focused on the transformation and democratization process of post-apartheid South Africa and the way in which that country deals with its extensive population diversity. The 1996 constitution shows that postapartheid South Africa aims at nation building and national unity, while not denying the need to accommodate its population diversity and to address minority protection concerns. Although the emphasis often seems to be on the unity rather than the diversity side of the “unity in diversity” theme, the Constitution contains several provisions that have potential to contribute to the protection and promotion of the right to identity of the various population groups in South Africa. These provisions can be considered multiform avenues to deal with and accommodate the country’s population diversity. Throughout the analysis it was argued that these various approaches can be considered to reflect a certain acknowledgement of the interrelation between individual human rights, minority rights, and the right to self-determination for the development of an adequate system of minority protection. At the same time, the legacy of apartheid and the concomitant sensitivity of certain concepts and mechanisms has influenced the exact choices and the formulation of the provisions, which is in line with the need to take specific circumstances into account when devising a “concrete,” appropriate system of minority protection. In view of the all-pervasive discriminatory policies of apartheid, the equality principle in all its dimensions is understandably central to the new constitutional dispensation, as is nation building and reconciliation. The strong emphasis on the need for redress and the explicit acceptance of affirmative action measures in this regard lead to the conclusion that the 1996 Constitution envisages substantive equality and not mere formal equality. If all the issues concerning the accommodation of population diversity/minority protection are approached and addressed so as to further the principle of substantive equality, that would be promising for a “balanced” realization of a right to identity of the various population groups. It is furthermore important to underline that a concern for nation building is not contrary to accommodation of population diversity. However, everything depends on the actual degree of protection and promotion of diversity that is realized while/when “unity in diversity” is pursued. The South African Bill of Rights includes all these individual human rights that are especially relevant for (members of) minorities, like freedom of religion, freedom of expression, freedom of assembly, and freedom of association.

Conclusion

267

The Bill of Rights1 also includes several clauses that are more closely related to minority rights. Section 31 is analogous to article 27 ICCPR, the international minority rights provision par excellence, and has thus clearly a minority protection focus, although the word “minority” is avoided and “community” is used instead. Apparently, the apartheid abuse of minority discourse has tainted the concept “minority” too badly to be used explicitly. In view of this attitude, it might very well be argued that three other sections of the Bill of Rights, although they are not formulated in minority rights terms, might equally qualify as such in view of their minority protection goals. Section 30 was originally included in the 1993 Bill of Rights as the section dealing with minority concerns, while section 29 (2) on the medium of instruction, and more specifically the reference to singlemedium institutions, has been included to accommodate, to a certain extent, the concerns of a section of the Afrikaner minority. Section 15 (3), which is part of the section on freedom of religion, is not even formulated as a right, let alone as an individual human right, but is nevertheless aimed at the accommodation of religious population groups. Consequently, that section can be argued to belong to the group of “minority rights provisions.” Finally, the language clause can also be considered to aim at an optimal accommodation of South Africa’s linguistic diversity and would thus have a minority protection rationale, even though it does not form part of the Bill of Rights. The regulation by this clause of the status and use of the languages spoken in South Africa promotes multilingualism, which implies a degree of protection (and promotion) of the linguistic identity of the speakers of these languages. Although section 235 of the 1996 Constitution does not enshrine a right to selfdetermination, it apparently leaves the door ajar for (the negotiation of) forms of territorial self-determination. Furthermore, self-determination is explicitly related to a “community sharing a common cultural and language heritage,” which reveals a connection between the subjects of self-determination and of the rights enshrined in section 31. Such a connection can be considered an acknowledgement of the interrelation between minority rights and the right to self-determination for an adequate system of minority protection.2 Overall, the 1996 Constitution turns away from the recognition of a right to self-determination that would result in a “volksstaat” or territorial entity for a specific cultural community. There are, however, several provisions that can be qualified as measures of internal self-determination or that have at least the potential to have such a function. One of the most obvious provisions in this respect is section 185, which provides for a Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities. The institutional support provided by this Commission, and more specifically the cultural councils whose establishment or recognition it can recommend, are often seen as the ideal form of internal self-determination for the various population groups in South Africa that feel such a need. It should in any event be underscored that it is exactly in section 185, and thus somewhere on the “bridge” between minority rights and the right to (internal)

268

Conclusion

self-determination, that there seems an incipient recognition of real group rights and the group dimension which is so essential for the minority phenomenon. It is appropriate to repeat at this point that one of the essential additional functions of a right to self-determination for minorities would be the stronger recognition of the group as such. Notwithstanding the promising nature of the 1996 Constitution and its various provisions with potential for minority protection, the picture that emerges from the overview of further policy development and implementation in the various relevant domains is ambivalent as regards the actual accommodation of population diversity/minority protection. Several deficiencies have been pointed out as to actual delivery, which further confirm and underscore the volatile nature of South African society as being in the midst of a major transformation. Furthermore, several implementation policies are still in full development and the actual application is in a tentative initial stage. Consequently, it is difficult to predict the eventual overall success of the policies of the post-apartheid regime for the accommodation of population diversity/minority protection. It is equally unsure whether the actual implementation and application patterns will acknowledge the interrelation between individual human rights, minority rights and the right to self-determination for an adequate system of minority protection. Although several constitutional provisions that address minority concerns have come about as a result of the demands of and negotiations by a section of the Afrikaner minority, other population groups are also becoming more vocal and assertive in their aim to protect and promote their separate identity. That broader mobilization is important because it could influence the actual delivery and realization of the constitutional promise of minority protection, multi-lingualism, and multiculturalism. It is, in any event, remarkable that a country so deeply scarred by apartheid, several policies of which tainted many of the techniques and mechanisms related to the minority protection discourse, nevertheless develops a constitution that not only contains human rights but also “minority rights” and a reference to selfdetermination for cultural communities. Considering that the actual practice and implementation is currently in some respects deficient and in others still in full development, it is impossible to formulate a conclusive evaluation about the adequacy of the system of minority protection that is emerging. The constitutional foundations to achieve a system that successfully accommodates a plural society’s population diversity are available, but everything will depend on actual implementation over the coming years and decades.

NOTES 1. The interrelation between individual human rights and minority rights for the development of an adequate system of minority protection is apparently also taken up in the structure of certain constitutional provisions, like sections 15, 16 and 29, 1996 Constitution, in that these have one paragraph that would qualify as an individual human right whereas another deals with matters that are related to concerns of (certain) minorities/ population groups.

Conclusion

269

2. See also X, “ANC not Playing Games with Afrikaners on Self-Determination: Phosa,” [www.anc.org.za/cgi-bin/shownews], 17 February 1999; X, “Afrikaners must seek Autonomy outside a Separate State,” [www.anc.org.za/cgi-bin/shownews], 16 February 1999; X, “Phosa agrees in principle to Committee on Minority Rights,” [www.anc.org.za/cgi-bin/shownews], 9 December 1998.

Bibliography

A. BIBLIOGRAPHY ON THEORY PERTAINING TO MINORITY PROTECTION: SELECTION OF THE MOST RELEVANT ITEMS General Comments of the Human Rights Committee to Articles of the ICCPR General Comment 12, Article 1—The Right to Self-Determination, UN Doc. HRI\GEN\ 1\Rev.1 at 12. General Comment 15, The Position of Aliens under the Covenant, UN Doc. HRI\GEN \1\Rev.1 at 18. General Comment 23, Article 27, UN Doc. HRI\GEN\1\Rev.1 at 38.

Documents of the UN Working Group on Minorities and other UN Documents Pertaining to Minority Protection Bossuyt, M. Comprehensive Examination of Thematic Issues Relating to the Elimination of Racial Discrimination. Working Paper on the Concept Affirmative Action, UN Doc. E/CN.4/Sub.2/1998/5, Geneva, Office of the United Nations High Commissioner for Human Rights, 3 June 1998, 8 p. Capotorti, F. Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, UN Doc. E/CN.4/Sub.2/384/Rev.1, 1991, 103 p. Chernichenko, S. The Definition of Minorities—Second Working Paper for the UN Working Group on Minorities, UN Doc. E/CN.4/Sub2/AC.5/1997/WP.1, April 1997, 7 p. Cristescu, A. Right to Self-Determination: Historical and Current Developments on the Basis of UN Instruments, UN Doc. E/CN.4/Sub.2/404/Rev.1, 1981, 125 p. Deschenes, J. Proposal Concerning a Definition of the Term “Minority,” UN Doc. E/CN.4/Sub.1/1985/31, 1985, 30 p.

272

Bibliography

De Varennes, F., To Speak or Not to Speak: The Rights of Persons Belonging to Linguistic Minorities—Working Paper for the UN Working Group on Minorities, UN Doc. E/CN.4/Sub.2./AC.5/1997/WP.6, 18 April 1997, 15 p. Eide, A. Commentary to the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities—Working Paper for the UN Working Group, UN. Doc. E/CN.4/Sub.2/AC.5/1998/WP.1, 13 May 1998, 14 p. Eide, A. Possible Ways and Means of Facilitating the Peaceful and Constructive Solution of Problems involving Minorities, UN Doc. E/CN.4/Sub.2/1993/34/Add.4, 11 August 1993, 11 p.

Case Law Advisory Opinion regarding Minority Schools in Albania, PCIJ, 6 April 1935, PCIJ Reports, Series A/B No 64, 1935; Buckley v UK, E.C.H.R., 25 September 1996, [www.dhcour.coe.fr]; Case “Relating to Certain Aspects of the Laws on the Use of Language in Education in Belgium,” E.C.H.R., 23 July 1968, Series A no 6. Efstratiou v France, E.C.H.R., 18 December 1996, [www.dhcour.coe.fr]; Handyside v UK, E.C.H.R., 7 December 1976, Series A no 24; Hoffmann v Austria, E.C.H.R., 23 June 1993, Series A no 255-C; Informationsverein Lentia and others v Austria, E.C.H.R., 24 November 1993, Series A no 276; Jersild v Denmark, E.C.H.R., 23 September 1994, Series A no 298; Kjeldsen, BusktMadsen and Pedersen v Denmark, E.C.H.R., 7 December 1976, Series A no 23; Kokkinakis v Greece, E.C.H.R., 25 May 1993, Series A no 260-A; Otto Preminger Institut v Austria, E.C.H.R., 20 September 1994, Series A no 295-A; Sidiropoulos v Greece, E.C.H.R., 10 July 1998, [www.dhcour.coe.fr]; Socialist Party and others v Turkey, E.C.H.R., 25 May 1998, [www.dhcour.coe.fr]; Young, James & Webster v UK, E.C.H.R., 13 August 1981, Series A no 44.

Council of Europe Documents Alfredsson, G. Report on Equality and Non-Discrimination: Minority Rights, 7th International Colloquy on the European Convention on Human Rights (Copenhagen, May 1990), H/Coll (90) 6, Strasbourg, Council of Europe, 1990, 23 p. Report on the Conference of European Ministers of Justice: Federalism, Regionalism and Protection of Minorities (Lugano, 22 June 1993), MJU-RI (93) 1, Strasbourg, Council of Europe, 1993, 17 p. Secretariat of the European Commission of Human Rights, European Court and Commission of Human Rights: Case-Law on Cultural Rights, H (95)12, Strasbourg, Council of Europe, 1995, 7 p.

Doctrine Alfredsson, G. “Minority Rights: A Summary of Existing Practice” in A. Phillips & A. Rosas (eds.), Universal Minority Rights, Abo, Abo Akademis Tryckeri, 1995, 77–86. An Na’Im, A.A. “Human Rights and the Challenge of Relevance: The Case of Collective Rights” in M. Castermans et al. (eds.), The Role of the Nation-State in the 21st

Bibliography

273

Century: Human Rights, International Organizations and Foreign Policy, The Hague, Kluwer, 1998, 3–16. Attanasio, J.B. “The Rights of Ethnic Minorities: The Emerging Mosaic,” Notre Dame Law Review 1991, 1195–1217. Barrie, G.N. “Group Rights and Individual Rights: An International Perspective,” SA Public Law 1998, 100–109. Barrie, G.N. Self-Determination in Modern International Law (Occasional Papers), Johannesburg, KAS, July 1995, 48 p. Benoît-Rohmer, F. “Le Conseil de l’ Europe et les Minorites Nationales” in K. Malfliet 7 R. Laenen (eds.), Minority Policy in Central and Eastern Europe: The Link between Domestic Policy, Foreign Policy and European Integration, Leuven, Catholic University of Leuven Press, 1998, 128–148. Benoît-Rohmer, F. The Minority Question in Europe: Towards a Coherent System of Protection for National Minorities, Strasbourg, Council of Europe, 1996, 18 p. Blair, P. The Protection of Regional or Minority Languages in Europe, Fribourg, Institut du Federalisme, 1994, 66 p. Bloed, A. “The OSCE and the Issue of National Minorities” in A. Phillips & A. Rosas (eds.), Universal Minority Rights, Abo, Abo Akademis Tryckeri, 1995, 113–122. Bossuyt, M. “Het Gelijkheidsbeginsel in de Internationale Pacten inzake Mensenrechten” in A. Alen & P. Lemmens (eds.), Gelijkheid en Non-Discriminatie, Antwerp, Kluwer, 1991, 33–46. Capotorti, F. “Minorities,” Encyclopedia of Public International Law 1983, 385–395. Capotorti, F. “Protection of Minorities under Multinational Agreements on Human Rights,” Italian Yearbook on International Law 1976, 3–32. Cholewinski, R. “State Duty Towards Ethnic Minorities: Positive or Negative?” H.R.Q. 1988, 344–371. Cobbah, J. “African Values and the Human Rights Debate: An African Perspective,” H.R.Q. 1987, 309–331. Crawford, J. “The Rights of Peoples: Some Conclusions” in J. Crawford (ed.), The Rights of Peoples, Oxford, Clarendon Press, 1988, 159–175. Deschenes, J. “Qu’ est-ce qu’une minorité?” Les Cahiers de Droit 1986, 255–291. De Varennes, F. Language, Minorities and Human Rights, London, Kluwer, 1997, 511 p. De Witte, B. “Le Principe d’ Egalité et la Pluralite Linguistique” in H. Giordan (ed.), Les Minorites en Europe: Droits Linguistiques et Droits de l’ Homme, Paris, Kime, 1992, 55–62. Dinstein, Y. “The Degree of Self-Rule of Minorities in Unitarian and Federal States” in C. Brollmann et al. (eds.), Peoples and Minorities in International Law, Dordrecht, Martinus Nijhoff, 1993, 221–235. Dinstein, Y. “Cultural Rights,” Israel Yearbook on Human Rights 1979, 58–81. Edwards, J. “Language, Diversity and Identity” in J. Edwards (ed.), Linguistic Minorities, Policies and Pluralism, London, Academic Press, 1984, 277–310. Eide, A. “Minority Protection and World Order: Towards a Framework for Law and Policy” in A. Phillips & A. Rosas (eds.), Universal Minority Rights, Abo, Abo Akademis Tryckeri, 1995, 87–112. Eide, A. “In Search of Constructive Alternatives to Secession” in C. Tomuschat (ed.), Modern Law of Self-Determination, Dordrecht, Martinus Nijhoff, 1993, 149–176. Ermacora, F. “The Protection of Minorities before the United Nations,” Recueil des Cours 1983, 247–370.

274

Bibliography

Farnen, R.F. Nationalism, Ethnicity and Identity: Cross National and Comparative Perspectives, News Brunswick, Transaction Publishers, 1994, 538 p. Galenkamp, M. “Collective Rights: Much Ado about Nothing? A Review Essay,” Netherlands H.R.Q. 1991–1992; 291–307. Gilbert, G. “The Legal Protection Accorded to Minority Groups in Europe,” Netherlands Yearbook on International Law 1992, 67–104. Giordan, H. “Droits des Minorités, Droits Linguistiques et Droits de l’Homme” in H. Giordan (ed.), Les Minorites en Europe. Droits Linguistiques et Droits de l’Homme, Paris, Kime, 1992, 9–39. Gomien, D., Harris, D. & Zwaak, L. Law and Practice of the European Convention on Human Rights and the European Social Charter, Strasbourg, Council of Europe, 1996, 497 p. Gonidec, P.F. “Conflits Internes et Question Nationale en Afrique: Le Droit à l’Autdétermination Interne,” R.A.D.I.C. 1997, 543–572. Green, L. “Two Views of Collective Rights,” The Canadian Journal of Law and Jurisprudence 1991, 316–327. Green, L.C. “Protection of Minorities in the League of Nations and the United Nations” in A. Gotlieb (ed.), Human Rights, Federalism and Minorities, Toronto, Canadian Institute of International Affairs, 1970, 180–210. Hannum, H. Autonomy, Sovereignty and Self-Determination: The Adjudication of Conflicting Interests, Philadelphia, University of Pennsylvania Press, 1996, 534 p. Hannum, H. “Rethinking Self-Determination,” Virginia Journal of International Law 1993–1994, 1–69. Hannum, H. “Contemporary Developments in the International Protection of the Rights of Minorities,” Notre Dame Law Review 1991, 1431–1448. Harris, D.J., O’Boyle, M. & Warbrick, C. Law of the European Convention on Human Rights, London, Butterworths, 1995, 753 p. Helgesen, J. “The Protection of Minorities in the Conference on Security and Cooperation in Europe (CSCE) Process” in J. Helgesen & K. Myntti (eds.), The Protection of Ethnic and Linguistic Minorities in Europe, Abo, Institute for Human Rights Press, 1993, 15–22. Hillgruber, C. & Jestaedt, M. The European Convention on Human Rights and the Protection of National Minorities, Koln, Verlag Wissenschaft und Politik, 1994, 124 p. Horowitz, D.L. “Self-Determination: Politics, Philosophy and Law” in W. Kymlicka & I. Shapiro (eds.), Ethnicity and Group Rights, New York, New York University Press, 1997, 421–503. Humphrey, J. “Preventing Discrimination and Positive Protection for Minorities: Aspects of International Law,” Cahiers de Droit 1986, 23–29. Jeffcoate, R. Ethnic Minorities and Education, London, Harper & Row, 1984, 186 p. Kimminich, O. “A ‘Federal’ Right of Self-Determination” in C. Tomuschat (ed.), Modern Law of Self-Determination, Dordrecht, Martinus Nijhoff, 1993, 83–100. Koskenniemi, M. “National Self-Determination Today: Problems of Legal Theory and Practice, I.C.L.Q. 1994, 241–269. Kunz, J. “The Present Status of the International Law for the Protection of Minorities,” A.J.I.L. 1954, 282–287. Kymlicka, W. “Introduction” in W. Kymlicka (ed.), The Rights of Minority Cultures, Oxford, Clarendon Press, 1995, 1–27. Kymlicka, W. Multicultural Citizenship: A Liberal Theory of Minority Rights, Oxford, Clarendon Press, 1995, 280 p.

Bibliography

275

Lerner, N. Group Rights and Discrimination in International Law, Dordrecht, Martinus Nijhoff, 1991, 181 p. Levrat, N. “La Protection des Minorites dans les Systemes Federaux,” Rev. Trim. Dr. H. 1997, 229–271. Marquand, C. “Human Rights Protection and Minorities,” Public Law 1994, 359–366. McCorquodale, R. “Self-Determination, a Human Rights Approach,” I.C.L.Q. 1994, 857–885. McKean, W. Equality and Discrimination under International Law, Oxford, Clarendon Press, 1985, 333 p. McGoldrick, D. The Human Rights Committee: Its Role in the Development on Civil and Political Rights, Oxford, Clarendon Press, 1991, 576 p. Miall, H. “Conclusions” in H. Miall (ed.), Minority Rights in Europe: The Scope for a Transnational Regime, London, Pinter, 1994, 1–6. Murswiek, D. “The Issue of a Right of Secession—Reconsidered” in C. Tomuschat (ed.), Modern Law of Self-Determination, Dordrecht, Martinus Nijhoff, 1993, 21–39. Musgrave, T.D. Self-Determination and National Minorities, Oxford, Clarendon Press, 1997, 290 p. Nowak, M. “The Evolution of Minority Rights in International Law” in C. Brollmann et al. (eds.), Peoples and Minorities in International Law, Dordrecht, Martinus Nijhoff, 1993, 104–117. Nowak, M. The UN Covenant on Civil and Political Rights: Commentary on the CCPR, Kehl, NP Engel, 1993, 947 p. Packer, J. “On the Content of Minority Rights” in J. Raikka (ed.), Do we Need Minority Rights? Conceptual Issues, The Hague, Martinus Nijhoff, 1996, 121–178. Packer, J. “On the Definition of Minorities” in J. Packer & K. Myntti (eds.), The Protection of Ethnic and Linguistic Minorities in Europe, Abo, Abo Akademis Tryckeri, 1993, 23–65. Pejic, J. “Minority Rights in International Law,” H.R.Q. 1997, 666–685. Pestieau, J. “Minority Rights: Caught between Individual Rights and Peoples’ Rights,” Canadian Journal of Law and Jurisprudence 1991, 361–373. Quane, H. “The United Nations and the Evolving Right to Self-Determination,” I.C.L.Q. 1998, 537–572. Raikka, J. (ed.), Do we need Minority Rights? Conceptual Issues, The Hague, Kluwer, 1996. Ramaga, P.V. “The Group Concept in Minority Protection,” H.R.Q. 1993, 575–588. Ramaga, P.V. “The Bases of Minority Identity,” H.R.Q. 1992, 409–428. Ramaga, P.V. “Relativity of the Minority Concept,” H.R.Q. 1992, 104–119. Ramcharan, B.G. “Equality and Non-Discrimination” in L. Henkin (ed.), The International Bill of Rights, New York, Columbia University Press, 1981, 246–269. Rigaux, F. “Mission Impossible: La Definition de la Minorité,” Rev. Trim. Dr. H. 1997, 155–175. Rodley, N.S. “Conceptual Problems in the Protection of Minorities: International Legal Developments,” H.R.Q. 1995, 48–71. Rosas, A. “Internal Self-Determination” in C. Tomuschat (ed.), Modern Law of SelfDetermination, Dordrecht, Martinus Nijhoff, 1993, 225–252. Schulte-Tenckhoff, I. & Ansbach, I. “Les Minorités en Droit International” in A. Fenet et al. (eds.), Le Droit et les Minorités. Analyses et Textes, Brussels, Bruylant, 1995, 15–81.

276

Bibliography

Schumann, K. “The Role of the Council of Europe” in H. Miall (ed.), Minority Rights. The Scope for a Transnational Regime, London, Pinter, 1994, 87–98. Sieminski, G. & Packer, J. “Integration through Education: The Origin and Development of the Hague Recommendations,” International Journal of Group and Minority Rights 1997, 187–198. Sigler, J.A. Minority Rights: A Comparative Analysis, Westport, Greenwood Press, 1983, 245 p. Shaw, M.N. “The Definition of Minorities in International Law” in Y. Dinstein & M. Tabory (eds.), The Protection of Minorities and Human Rights, Dordrecht, Martinus Nijhoff, 1992, 1–31. Skutnabb-Kangas, T. Bilingualism or Not: The Education of Minorities, Clevedon, Multilingual Matters, 1981, 378 p. Skutnabb-Kangas, T. & Cummins, J. (eds.). Minority Education: From Shame to Struggle, Clevedon, Multilingual Matters, 1988, 410 p. Sohn, L.B. “The Rights of Minorities” in L. Henkin (ed.), The International Bill of Rights, New York, Columbia University Press, 1981, 270–289. Spiliopoulou-Akermark, A. Justifications of Minority Protection in International Law, London, Kluwer, 1997, 331 p. Stavenhagen, R. The Ethnic Question: Conflicts Development and Human Rights, Tokyo, UN University Press, 1990, 185 p. Steiner, H. “Political Participation as a Human Right,” Harvard Human Rights Yearbook 1988, 77–134. Suksi, M. “On the Entrenchment of Autonomy” in M. Suksi (ed.), Autonomy: Applications and Implications, The Hague, Kluwer, 1998, 151–171. Tabory, M. “Language Rights as Human Rights,” Israel Yearbook of Human Rights 1980, 167–223. Thornberry, P. “The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities: Background, Analysis, Observations and an Update” in A. Phillips & A. Rosas (eds.), Universal Minority Rights, Abo, Abo Akademis Tryckeri, 1995, 1995, 13–76. Thornberry, P. International Law and the Rights of Minorities, Oxford, Clarendon Press, 1991, 451 p. Tomuschat, C. “Protection of Minorities under Article 27 of the International Covenant on Civil and Political Rights” in R. Bernhardt et al. (eds.), Volkerrecht as Rechtsordnung, Internationale Gerichtsbarkeit Menschenrechte, 1983, 949–979. Turk, D. “Minorities, Self-Determination and other Crucial Issues of Human Rights in Europe,” All European Human Rights Yearbook 1991, 279–290. Vandernoot, P. “Les Aspects Linguistiques du Droit des Minorités,” Rev. Trim. Dr. H. 1997, 309–369. Van Dijk, P, Van Hoof, G.J.H. et al. Theory and Practice of the European Convention on Human Rights, The Hague, Kluwer, 1998, p. 850. Varady, T. “Minorities, Majorities and Ethnicity: Reflections on the Yugoslav Case,” H.R.Q. 1997, 9–54. Verhoeven, J. “Les Principales Etapes de la Protection des Minorités,” Rev. Trim. Dr. H. 1997, 177–203. Williams, C.H. “The Cultural Rights of Minorities: Recognition and Implementation” in J. Plichtova (ed.) Minorities in Politics: Cultural and Language Rights, Bratislava, Czechoslovac Committee of the European Cultural Foundation, 1992, 106–121.

Bibliography

277

Young, Crawford. The Rising Tide of Cultural Pluralism, Madison, University of Wisconsin Press, 1993, 305 p.

B. BIBLIOGRAPHY ON SOUTH AFRICA Selection of Documents Obtained during the Period that I Monitored the Constitutional Negotiation Process, January to June 1996 Panel of Constitutional Experts, Memorandum on Collective Rights and Self-Determination, Cape Town, 23 April 1996, 5 p. Panel of Constitutional Experts, Memorandum on the Equality Clause (section 8(3)), Cape Town, 28 March 1996, 10 p. Panel of Constitutional Experts, Memorandum on “Special Limitations/Qualifiers” and General Limitation, Cape Town, 20 February 1996, 6 p. Panel of Constitutional Experts, Memorandum on Horizontality, Cape Town, 20 February 1996, 2 p. Panel of Constitutional Experts, Memorandum on the Constitutional Protection of Freedom of Expression and “Hate Speech” (section 15), Cape Town, 1 February 1996, 8 p. Commission on Provincial Government, Recommendations to the Constitutional Assembly in Terms of Section 164 of the Constitution of the Republic of South Africa 1993, Cape Town, 16 February 1996, 135 p. Report of the Commission on the Demarcation/Delimitation of SPRs, 31 July 1993, strictly embargoed until tabling at the Negotiation Council on Monday 2 August 1993. Accord on Afrikaner Self-Determination between the Freedom Front, the African National Congress and the South African Government/National Party, 21 April 1996. First Commentary of the Freedom on: Afrikaner Self-Determination and the Way Forward, a Facilitator’s Proposal of 6 February 1996, 9 February 1996. Bi-Lateral Negotiations between the ANC and the Freedom Front, February 1996, 22 February 1996. A Freedom Front’s View on The Possible Contents of a New Accord between the Freedom Front and the ANC, 22 February 1996. Commission on Demarcation/Delimitation of SPRs, Report on further work on Demarcation/Delimitation of SPRs, MPNP, Kempton Park, 1993, 137 p.

Documents from the Internet on the Constitutional Negotiation Process Constitutional Talk, the Official Newsletter of the Constitutional Assembly: Consitutional Talk Number 1: 13–26 January 1995, [www.constitution.org.za/talk1_95. html]; Constitutional Talk Number 2: 27 January–9 February 1995, [www.constitution.org.za/talk2_95.htm]. Constitutional Talk Number 3: 10–23 February 1995, [www.constitution.org.za/ talk3_95.htm]. Constitutional Talk Number 4: 24 February–16 March 1995, [www.constitution.org.za/ talk4_95.html].

278

Bibliography

Constitutional Talk Number 5: 17 March–6 April 1995, [www.constitution.org.za/ talk5_95.html]. Constitutional Talk Number 7: 19 May–7 June 1995, [www.constitution.org.za/ talk7_95.htm]. Constitutional Talk Number 8: 8 June–29 June 1995, [www.constitution.org.za/ talk8_95.html]. Constitutional Talk Number 9: 30 June–10 August 1995, [www.constitution.org.za/ talk9_95.html]. Constitutional Talk Number 10: 11–24 August 1995, [www.constitution.org.za/ talk10_95.html]. Constitutional Talk Number 12: 8–21 September 1995, [www.constitution.org.za/ talk12_95.html]. Constitutional Talk Number 13: 22 September 1995, [www.constitution.org.za/ talk13_95.html]. Constitutional Talk Number 1: 9 February–7 March 1996, [www.constitution.org.za/ talk1_96.html]. Constitutional Talk Number 2: 8 March–21 April 1996, [www.constitution.org.za/ talk2_96.html]. Constitutional Talk Number 3: 22 April–6 September 1996, [www.constitution.org.za/ talk3_96.html]. Constitutional Talk Number 4: 7 September–16 October 1996, [www.constitution.org.za/ talk4_96.html]. Constitutional Talk Number 5: 17 October 1996, [www.constitution.org.za/ talk5_96.html]. Equality and Discrimination, [www.constitution.org.za/edit/equal.htm]. A Place for Tradition, [www.constitution.org.za/edit/traditio.htm]. Protecting Personal Freedom, [www.constitution.org.za/edit/person.htm]. Security in a Human Rights Culture, [www.constitution.org.za/edit/security.htm]. Some Facts about the Working Draft of the New Constitution, 22 November 1995, [www.constitution.org.za/fet22115.htm]. Symbols for a New Nation, [www.constitution.org.za/edit/symbols.htm].

Government Documents and Legislation Education Portfolio Committee, National Assembly, Language Medium in Education: Briefing by Pan South African Language Board, Cape Town, 20 February 2001. Department of Arts, Culture, Science and Technology, Programme 1998. Selected Activities, Pretoria, DACST, 1998, 24 p. Department of Arts, Culture, Science and Technology, Hoyozela—Because Our Languages Belong to Us All. Report on Multilingualism Conference 7 May 1998, Pretoria, DACST, 1998. Department of Arts, Culture, Science and Technology, Culture in Community. Arts & Culture RDP Projects, Pretoria, DACST, 1998, 34 p. Department of Arts, Culture, Science and Technology, Arts & Heritage 1998—Guide to South African Arts, Culture & Heritage, Pretoria, DACST, 1998, 96 p. Department of Arts, Culture, Science and Technology, White Paper on Arts, Culture and Heritage, Pretoria, DACST, 1996, [www.polity.org.za/govdocs/white_papers/ arts.html], 38 p.

Bibliography

279

LANGTAG, Final Report of the Language Plan Task Group (LANGTAG): Towards a National Language Plan for South Africa, Pretoria, DACST, 1998, 229 p. LANGTAG, Conference Discussion Document: Draft Report of the Language Plan Task Group (LANGTAG) of the Minister of Arts, Culture, Science and Technology, Pretoria, DACST, 1996, 39 p. LANGTAG, Subcommittee on Language in Education: Draft Report of the Language Plan Task Group (LANGTAG) of the Minister of Arts, Culture, Science and Technology, Pretoria, DACST, 1996, 10 p. LANGTAG, Subcommmittee on Heritage Languages and Special Language Systems: Draft Report of the Language Plan Task Group (LANGTAG) of the Minister of Arts, Culture, Science and Technology, Pretoria, DACST, 1996, 16 p. LANGTAG, Subcommittee on the Development of (South) African Languages: Draft Report of the Language Plan Task Group (LANGTAG) of the Minister of Arts, Culture, Science and Technology, Pretoria DACST, 1996, 8 p. LANGTAG, Subcommittee on Equitable and Widespreak Language Services: Draft Report of the Language Plan Task Group (LANGTAG) of the Minister of Arts, Culture, Science and Technology, Pretoria, DACST, 1996, 23 p. LANGTAG, Subcommittee on Language Equity: Draft Report of the Language Plan Task Group (LANGTAG) of the Minister of Arts, Culture, Science and Technology, Pretoria, DACST, 1996, 23 p. LANGTAG, Subcommittee on Language as an Economic Resource: Draft Report of the Language Plan Task Group (LANGTAG) of the Minister of Arts, Culture, Science and Technology, Pretoria, DACST, 1996, 26 p. LANGTAG, Subcommittee on Literacy: Draft Report of the Language Plan Task Group (LANGTAG) of the Minister of Arts, Culture, Science and Technology, Pretoria, DACST, 1996, 27 p (and several appendices). LANGTAG, Study Report on Language in the Public Service: Draft Report of the Language Plan Task Group (LANGTAG) of the Minister of Arts, Culture, Science and Technology, Pretoria, DACST, 1996, 17 p. Department of Justice and Constitutional Development, A Draft Discussion Document Towards a White Paper on Traditional Leadership and Institutions, Pretoria, 26 April 2000, 16 p. Department of Constitutional Development, Report on the Conference Regarding the Constitutional Accommodation of Vulnerable Indigenous Communities in South Africa (Upington, May 23–24 1998), Pretoria, Department of Constitutional Development, 1998, 4 p (the various speeches are separate annexes to this report). Chief Directorate Constitutional Affairs, Development and Transformation of Policy Matters on Traditional Leadership: Evaluation and Summation of Discussions with Academics and Experts, Discussion Document, Pretoria, Department of Constitutional Development, August 1996, 51 p. Van Wyk, J.J., Traditional Leaders and Authorities—from Pre-colonialism to the 1996 Constitution. Evoluation of Politics, Interests and Principles, Pretoria, Department of Constitutional Development, January 1997. National Department of Education, Language in the Classroom: Towards a Framework for Intervention, Pretoria, Department of Education, May 2000, 108 p. Report of the Ministerial Committee on Religious Education, Pretoria, National Department of Education, January 1999, 65 p.

280

Bibliography

National Department of Education, Guidelines for the Consideration of Governing Bodies in Adopting a Code of Conduct for Learners—Notice 776 of 1998, Government Gazette of 15 May 1998. National Department of Education, Admissions Policy for Ordinary Public Schools— Notice 2432 of 1998, Government Gazette of 19 October 1998. National Department of Education, Quality Education for All: Overcoming Barriers to Learning and Development: Report of the National Commission on Special Needs in Education and Training and the National Committee for Education Support Services, Pretoria, National Department of Education, 28 November 1997. National Department of Education, Progress Report on the Implementation of the South African Schools Act, No 84 of 1996, Pretoria, National Department of Education, 12 September 1997. National Department of Education, Regulations Relating to the Minimum Requirements of an Agreement Between the Member of the Executive Council and the Owner of a Private Property on Which a Public School Is Provided, Notice of 1997, Pretoria, Ministry of Education, 9 September 1997. National Commission on Higher Education, A Framework for Transformation, Pretoria, National Department of Education, 1996, 415 p. National Department of Education, Towards a Language Policy in Education— Discussion Document, Pretoria, Department of Education, 1995, 41 p. Equality Legislation Drafting Unit, Discussion Document IV: Draft of the Prohibition of Unfair Discrimination Bill, Johannesburg, Equality Legislation Drafting Unit, 30 May 1998, 30 p. Equality Legislation Drafting Unit, Discussion Paper III: Preliminary Research Reports and Proposals Regarding a Framework on Equality Legislation for South Africa, Johannesburg, Equality Legislation Drafting Unit, 1998, 80 p. Equality Legislation Drafting Unit, Discussion Paper II, Johannesburg, Equality Legislation Drafting Unit, 26 May 1998, 29 p. Equality Legislation Drafting Unit, Discussion Paper I: Equality Legislation for South Africa, Johannesburg, Equality Legislation Drafting Unit, 1998, 24 p. Department of Justice, National Action Plan for the Protection and Promotion of Human Rights, Pretoria, Department of Justice, 1998, [www.sahrc.org.za/nat]. Department of Justice, Justice Vision 2000, Pretoria, Department of Justice, 1998. Department of Justice, The First 1000 Days, Pretoria, Department of Justice, 1997, 81 p. Department of Labour, Employment and Occupational Equity: Policy Proposals, General Notice 804 of 1996, Pretoria, National Department of Labour, 1996 (not numbered). Department of Public Service and Administration, White Paper on Affirmative Action in the Public Service, Notice 564 of 1998, Pretoria, Department of National Service and Administration, March 1998, [www.polity.org.za/govdocs/white_papers/ affirmative.html], 33 p. Department of Public Service and Administration, A Conceptual Framework for Affirmative Action and the Management of Diversity in the Public Service, General Notice 851 of 1997, Pretoria, Department of Public Service and Administration, 1997, 34 p. Public Service Staff Code, Chapter B VII and B Special (as amended) with annexures. South African Law Commission, The Harmonisation of the Common Law and the Indigenous Law: Conflicts of Laws (Project 90—Discussion Paper 76), Pretoria, SALC, April 1998, 91 p.

Bibliography

281

South African Law Commission, Harmonisation of the Common Law and the Indigenous Law: Conflict of Laws (Project 90—Issue Paper 4), 1997. South African Law Commission, Harmonisation of the Common Law and the Indigenous Law (Customary Marriages) (Project 90—Issue Paper 3), 1996. South African Law Commission, Report on Constitutional Models, III, 1991, 1471 p. South African Law Commission, Final Report on Human and Group Rights, 1994, 702 p. South African Law Commission, Final Report on Jewish Divorces (Project 76), October 1994, 84 p. South African Human Rights Commission, Racism, “Racial Integration” and Desegregation in South African Public Secondary Schools, Johannesburg, February 1999, 157 p. Department of Telecommunications, White Paper on Broadcasting Policy, Pretoria, Department of Telecommunications, 1998, [www.polity.org.za/govdocs/white_ papers/broadcastingwp.html]. Mpofu, B., Policy and Restructuring of the Communications Sector in South Africa: Analysis of the Electronic and Press Media in South Africa: Restructuring in the 90s, Pretoria, Department of Telecommunications, 1996, 8 p. Statistics South Africa, Census in Brief—The Population of South Africa. Population Census, 1996, Pretoria, Statistics South Africa, 1998 (not numbered).

Legislation The Constitution of the Republic of South Africa, Act No 108 of 1996, published in pocketform—ISBN 0-620-20214-9. Constitution of the Republic of South Africa, Act No 200 of 1993, Government Gazette, 28 January 1994, No. 15466. Amendments to the Constitution of the Republic of South Africa Proposed by the Inkatha Freedom Party, tabled end of 1998. The Constitution of the Province of Kwazulu-Natal, Act No 18 of 1996, Provincial Gazette of Kwazulu-Natal, 26 April 1997, No 5123. The Constitution of the Western Cape, 11 September 1997, [www.anc.org.za/govdocs/ constitution/provcons]. Adult Basic Education and Training Act, No 52 of 2000, [www.anc.org.za/govdocs/ legislation/2000]. Promotion of Equality and Prevention of Unfair Discrimination Act, no 4 of 2000, [www.anc.org.za/govdocs/legislation/2000]. Local Government: Municipal Structures Act, No 117 of 1998, Government Gazette, 18 December 1998, No 19614. Recognition of Customary Marriages Act, No 120 of 1998, Government Gazette, 2 December 1998, No 19539. Council of Traditional Leaders Act, No 85 of 1998, Government Gazette, 30 October 1998, No 19409. Employment Equity Act, No 55 of 1998, Government Gazette, 19 October 1998, No 19370. Local Government Municipal Demarcation Act, No 27 of 1998, Government Gazette, 3 July 1998, No 19020. Renumeration of Public Office Bearers Act, No 20 of 1998, Government Gazette, 23 September 1998, No 19274. Higher Education Act, Act No 101 of 1997, Government Gazette, 19 December 1997, No 18515.

282

Bibliography

Council of Traditional Leaders Act, No 10 of 1997, Statutes of the Republic of South Africa Constitutional Law, Issue No 32, 1061–1065. South African Schools Act, No 84 of 1996, [gopher://gopher.polity.org.za:70/00/ govdocs/legislation/1996/act96.084]. National Education Policy Act, No 27 of 1996, Government Gazette, 4 August 1997, No 18190. Pan South African Language Board Act, No 59 of 1995, Government Gazette, 4 October 1995, No 16726. South African Qualifications Authority Act, No 58 of 1995, [polity.org.za/govdocs/ legislation/1995/act95–058.html]. Human Rights Commission Act, No 54 of 1994, Statutes of South Africa—Constitutional Law, Issue No 30, 1021–1041. Volkstaat Council Act, No 30 of 1994, Statutes of the Republic of South Africa— Constitutional Law, Issue No 28, 355–357. Public Protector Act, No 23 of 1994, Statutes of the Republic of South Africa— Constitutional Law, Issue No 28, 1135–1147. Independent Broadcasting Authority Act, No 153 of 1993, [www.anc.org.za/docs/legislation/independent/ . . . ]. University of the Witwatersrand, Johannesburg, (Private) Act, No 15 of 1959, Statutes of the Republic of South Africa—Education, Issue No 32, 505–523. University of South Africa Act, No 19 of 1959, Statutes of the Republic of South Africa— Education, Issue No 27, 555–565. University of Cape Town Act, No 38 of 1959, Statutes of the Republic of South Africa— Education, Issue No 27, 645–655. University of Stellenbosch (private) Act, No 107 of 1992, Statutes of the Republic of South Africa, Issue No 26, 601–613. University of Natal (Private) Act, No 7 of 1960, Statutes of the Republic of South Africa Act, Issue No 27, 751–769. House of Traditional Leaders Act (Free State), No 6 of 1994, Orange Free State Province: Provincial Gazette, 17 October 1994, No 44. House of Traditional Leaders of the Province of the North West, No 12 of 1994, North West Provincial Gazette, 4 November 1994, No 69. Eastern Transvaal House of Traditional Leaders Act, No 4 of 1994, The Province of Eastern Transvaal Provincial Gazette, 23 December 1994, No 16. Kwazulu Natal Act on the House of Traditional Leaders, No 7 of 1994, The Provincial Gazette of Kwazulu-Natal, 15 November 1994, No 4999. House of Traditional Leaders Act (Eastern Cape), No 1 of 1995, Province of the Eastern Cape Provincial Gazette, 27 March 1995, No 46. Northern Transvaal House of Traditional Leaders Act, No 6 of 1994, The Province of Northern Transvaal Provincial Gazette, 13 January 1995, No 17.

Parliamentary Documents of the National As Well As Provincial Parliaments Hansard, Debates in the National Assembly on Section 185 Constitution, 4 August 1998. Record of Debates in the Provincial Parliament of Gauteng on the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, 4 August 1998.

Bibliography

283

Record of Debates in the Provincial Parliament of the West-Kaap, Proses vir die Daarstelling van die Kommissie vir die Bevordering en Beskerming van die Regte van Kultuur-, Godsdiens- en Taalgemeenskappe, 28 July 1998. Record of Proceedings of the Provincial Parliament of Kwazulu-Natal, Debate on the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, 13 August 1998.

Jurisprudence of the Constitutional Court S v Zuma, CCT 5/94, 5 April 1995, 1995 (2) SA 642 (CC), 1995 (4) BCLR 401 (CC). S v Makwanyane and another, CCT 3/94, 6 June 1995, 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC). S v Vermaas, CCT 1/94, 8 June 1995, 1995 (3) SA 292 (CC), 1995 (7) BCLR 851 (CC). Executive Council, Western Cape Legislature and others v President of the Republic of South Africa and others, CCT 27/95, 22 September 1995, 1995 (4) SA 877 (CC), 1995 (10) BCLR 1289 (CC). Premier of Kwazulu-Natal and others v President of the Republic of South Africa, CCT 36/95, 29 November 1995, 1996 (1) SA 769 (CC), 1995 (12) BCLR 1561 (CC). S v Ntuli, CCT 17/95, 8 December 1995, 1996 (1) SA 1207 (CC), 1996 (1) BCLR 141 (CC). Bernstein and others v Von Willigh Bester NO and others, CCT 23/95, 3 April 1996, 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC). Speaker of the National Assembly, Ex Parte: In Re Dispute Concerning the Constitutionality of Certain Provisions of the National Education Bill No 83 of 1995, CCT 46/95, 3 April 1996, 1996 (3) SA 289 (CC), 1996 (4) BCLR 518 (CC). The Gauteng Provincial Legislature in Re: Dispute Concerning the Constitutionality of Certain Provisions of the School Education Bill of 1995, CCT 39/95, 4 April 1996, 1996 (3) SA 165 (CC), 1996 (4) BCLR 537 (CC). Nel v Le Roux NO and Others, CCT 30/95, 4 April 1996, 1996 (3) SA 562 (CC), 1996 (4) BCLR 592 (CC). Du Plessis and Others v De Klerk and Another, CCT 8/95, 15 May 1996, 1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC). Brink v Kitshoff NO, CCT 15/95, 15 May 1996, 1996 (4) SA 197 (CC), 1996 (6) BCLR 752 (CC). Azanian Peoples Organization (AZAPO) and Others v President of the Republic of South Africa, CCT 17/96, 25 July 1996, 1996 (4) SA 671 (CC), 1996 (8) BCLR 1015 (CC). Chairperson of the Constitutional Assembly, Ex Parte: In Re Certification of the Constitution, 1996, CCT 23/ 96, 6 September 1996, 1996 (4) SA 744 (CC), 1996 (10) BCLR 1253 (CC). Speaker Kwazulu-Natal Provincial Legislature, Ex Parte: In Re Certification of the Constitution of the Province of Kwazulu-Natal, 1996, CCT 15/96, 6 September 1996, 1996 (4) SA 1097 (CC), 1996 (11) BCLR 1419 (CC). Chairperson of the National Assembly, Ex Parte: In Re Certification of the Amended Text of the Constitution of the Republic of South Africa, 1996, CCT 37/95, 4 December 1996, 1997 (2) SA 97 (CC), 1996 (1) BCLR 1 (CC). Fraser v The Children’s Court, Pretoria North & Others, CCT 31/96, 5 February 1997, 1997 (2) SA 261 (CC), 1997 (2) BCLR 153 (CC). S v Coetzee and Others, CCT 50/96, 27 March 1997, 1997 (4) BCLR 437 (CC).

284

Bibliography

President of the Republic of South Africa and Another v Hugo, CCT 11/96, 18 April 1997, 1997 (4) SA 1 (CC), 1997 (6) BCLR 708 (CC). Prinsloo v Van Der Linde and Another, CCT 4/96, 18 April 1997, 1997 (3) SA 1012 (CC), 1997 (6) BCLR 759 (CC). Ex Parte Speaker Western Cape Provincial Legislature: In Re Certification of the Constitution of the Western Cape, 1997, CCT 6/97, 2 September 1997, 1997 (4) SA 795 (CC), 1997 (9) BCLR 1167 (CC). Lawrence v The State and Another; Negal v The State and Another; Solberg v The State and Another, CCT 38/96, 39/96 and 40/96, 6 October 1997, 1997 (4) SA 1176 (CC), 1997 (10) BCLR 1348 (CC). Jeanette Harksen v Lane NO and Others, CCT 9/97, 7 October 1997, 1998 (1) SA 300 (CC), 1997 (11) BCLR 1537 (CC). Ex Parte Speaker Western Cape Provincial Legislature: In Re Certification of Amended Text of the Constitution of the Western Cape, 1997, CCT 29/97, 18 November 1997, 1997 (12) BCLR 1653 (CC). Larbi-Odam and Others v The MEC for Education (North-West Province) and Another, CCT 2/97, 26 November 1997, 1997 (12) BCLR 1655 (CC). The City Council of Pretoria v Johan Walker, CCT 8/97, 17 February 1998, 1998 (2) SA 363 (CC), 1998 (3) BCLR 297 (CC). Mistry v the Interim National Medical and Dental Council of South Africa and Others, CCT 13/97, 29 May 1998, 1998 (4) SA 1127 (CC), 1998 (7) BCLR 880 (CC). Amod v Multilateral Motor Vehicle Accidents Fund, CCT 4/98, 27 August 1998, 1998 (4) SA 753 (CC), 1998 (10) BCLR 1207 (CC). The National Coalition for Gay and Lesbian Equality and Another v The Minister of Justice and Others, CCT 11/98, 9 October 1998, 1998 (12) BCLR 1517 (CC). The Premier, Province of Mpumalanga & David D Mabuza NO versus Executive Committee of the Association of Governing Bodies of State-Aided Schools: Eastern Transvaal, CCT 10/98, 2 December 1998, 1999 (2) BCLR 151 (CC). Christian Education South Africa v Minister of Education, CCT 4/00, 18 August 2000. Hoffmann v SAA, CCT 17/00, 28 September 2000, 2001 (1) SA 1 (CC). Moseneke and others v Master of the High Court, CCT 51/00, 6 December 2000.

Jurisprudence of Other South African Courts Wittmann v Deutscher Schulverein, Pretoria and Others, High Court—Transvaal Provincial Division, 4 May 1998, 1998 (4) SA 423. G A Prince v The President of the Law Society of the Cape of Good Hope, the Law Society of the Cape of Good Hope, the Minister of Justice and the Attorney General of the Cape of Good Hope, High Court, Cape Provincial Division, 23 March 1998, unreported. Bangindawo and Others v Head of the Nyanda Regional Authority and Another; Hlantlalala v Head of the Western Tembuland Regional Authority and Others, High Court—Transkei Division, 13 February 1998, 1998 (3) BCLR 314 (Tk). Hlophe v Mahlalela and Another, High Court—Transvaal Provincial Division, 21 April 1997, 1998 (1) SA 449. Louw v Transitional Local Council of Greater Germiston, High Court—Witwatersrand Local Division, 19 May 1997, 1997 (8) BCLR 1062.

Bibliography

285

Makholiso and Others v Makholiso and Others, Transkei Supreme Court, 31 March 1996, 1997 (4) SA 509. Public Servants Association of South Africa and Others v Minister of Justice and Others, Hight Court—Transvaal Provincial Division, 4 March 1997, 1997 (3) SA 925. Mthembu v Letsela and Another, Hight Court, Transvaal Provincial Division, 21 November 1996, 1997 (2) SA 936. Ryland v Edros, Supreme Court—Cape of Good Hope Provincial Division, 13 August 1996, 1997 (1) BCLR 77. Mani v Mani, Transkei Supreme Court, 1 February 1996, 1996 (3) All SA 42. Government of the Province of Kwazulu/Natal and Another v Ngwane, Appellate Division, 19 August 1996, 1996 (4) SA 943. Thibela v Minister van Wet en Orde en andere, High Court—Transvaal Provincial Division, 1 August 1991, 1995 (3) SA 147. B. Collier v The State, Supreme Court, Cape Provincial Division, 2 June 1995, unreported. The State v B. Collier, Magistrate Court, Cape Provincial Division, 29 November 1994, unreported. Mandela v Falati, Supreme Court, Witwatersrand Local Division, 8 August 1994, 1994 (4) BCLR 1.

Reports of Independent Bodies IBA, Triple Inquiry Report. Report on the Protection and Viability of Public Broadcasting Services, Cross Media Control of Broadcasting Services, Local Television Content and South African Music, Johannesburg, IBA, 1995, 173 p. IBA, Community Sound Broadcasting Services. Discussion Paper, Johannesburg, 1996, received from the library of the IBA. Broadcasting Monitoring and Complaints Committee, Six Monthly Complaints Report, July to December 1996, Johannesburg, IBA, 1996, [wn.apc.org/iba/comdec96.htm]. Broadcasting Monitoring and Complaints Committee, Six Monthly Complaints Report, January to June 1996, Johannesburg, IBA, 1996, [www.sn.apc.org/iba/comjun96.htm]. IBA, Discussion Paper on the Revision of the IBA’s Code of Conduct for Broadcasters, Pretoria, IBA, 1998, [www.sn.apc.org/iba/code_con.htm]. PANSALB, Annual Report 1998, Pretoria, PANSALB, 1998, 47 p. PANSALB, Annual Report 1999, Pretoria, PANSALB, 1999, 42 p. PANSALB, Annual Report 2000, Pretoria, PANSALB, 2000, 64 p. The Public Protector, [www.polity.org.za/govt/pubprot/pubprot.html], 3 p. Some of the special reports of The Public Protector (in addition to the half yearly report to the National Assembly) are reports no 1 and no 2, which deal with the investigation into the play Sarafina II and report no 3 on the progress and integrity of the senior certificate examination. South African Human Rights Commission, Annual Report 1996–1997, Johannesburg, SAHRC. Volkstaat Council, Report to the Portfolio Committee on Constitutional Affairs, Pretoria, Volkstaat Council, 12 May 1998, 22 p. Volkstaat Council, Self-Determination, Its Nature, Development and Application. A Historical Survey, Pretoria, Volkstaat Council, 1997, 21 p. Volkstaat Council, The Constitutional Proposals of the Volkstaat Council, Pretoria, Volkstaat Council, 1996, 37 p.

286

Bibliography

Volkstaat Council, Self-Determination and the Working Draft of the New Constitution of 22 November 1995, submitted to the Constitutional Sub-Committee on 27 February 1996, 13 p. Volkstaat Council, Fifth Report. The History of Afrikaner Self-Determination, Pretoria, Volkstaat Council, 1996, 41 p. Volkstaat Council, Fourth Report. Constitutional Recognition of the Principle of SelfDetermination in International Context, Pretoria, Volkstaat Council, 1996, 61 p. Volkstaat Council, Second Report. Summary of Evidence and other Relevant Information, Pretoria, Volkstaat Council, September 1995, 83 p. Volkstaat Council, First Interim Report: Broadening Democracy for Stability, Pretoria, Volkstaat Council, May 1995, 110 p.

Doctrine Agnihotri, R.K. “Multilingualism as a Classroom Resource” in K. Heugh (ed.), Multilingual Education for South Africa, Johannesburg, Heinemann, 1995, 3–7. Akinnusi, A. “The Consequences of Customary Marriages in South Africa: Would the Recognition of Customary Marriages Act, 1998 make any Difference?” Journal of Judicial Science 2000, 13–154. Albertyn, C. & Goldblatt, B. “Facing the Challenge of Transformation: Difficulties in the Developments of an Indigenous Jurisprudence of Equality,” South African Journal of Human Rights 1998, 248–276. Albertyn, C. & Kentridge, R. “Introducing the Right to Equality in the Interim Constitution,” South African Journal of Human Rights 1994, 149–178. Alen, A. & Henrard, K. “The Relevance for South Africa of Minority Protection in Belgium” in B. De Villiers et al. (eds.), Constitutional Development in Divided Societies, Pretoria, HSRC, 1998, 93–150. Alexander, N. “Building a New Nation: Promoting Unity and Accommodating Diversity” in M. Cross et al. (eds.), Dealing with Diversity in South African Education. A Debate on the Politics of a National Curriculum, Kenwyn, Juta, 1998, 107–110. Alexander, N. “Language Education Policy and the National Education Department” in D. Brown (ed.), Education Policy and Language Learning for a Multilingual Society, Durban, Education Policy Unit, 1997, 27–30. Alexander, N. “The Great Gariep: Metaphors of National Unity in the New South Africa” in W. James et al. (eds.), Now That We Are Free. Coloured Communities in a Democratic South Africa, Johannesburg, IDASA, 1996, 104–107. Alexander, N. “Models of Multilingual Schooling for a Democratic South Africa” in K. Heugh (ed.), Multilingual Education for South Africa, Johannesburg, Heinemann, 1995, 79–82. Alexander, N. “Multilingualism for Empowerment” in K. Heugh (ed.), Multilingual Education for South Africa, Johannesburg, Heinemann, 1995, 37–41. Alexander, N. “South Africa: Harmonising Nguni and Sotho” in N.T. Crawhall (ed.), Democratically Speaking: International Perspectives on Language Planning, Salt River, National Language Project, 1992, 56–68. Alexander, N. Language Policy and National Unity in South Africa/Azania, Cape Town, Buchu Books, 1991, 85 p. Arendse, N. “The Role of Affirmative Action in the Advocates’ Profession,” Consultus 1997, 54–56.

Bibliography

287

Barrie, G.N. “Ubuntu Ungamntu Ngabanye Abantu: The Recognition of Minority Rights in the South African Constitution,” Tydskrif vir die Suid-Afrikaanse Reg 2000, 271–278. Basson, D. South Africa’s Interim Constitution, Kenwyn, Juta, 1994, 374 p. Beckman, J. “Religion in the Schools: Some Implications of a New Constitution,” South African Journal of Education 1995, 97–100. Bennett, T.W. Human Rights and African Customary Law, Cape Town, Juta, 1995, 174 p. Bennett, T.W. “The Equality Clause and Customary Law,” South African Journal of Human Rights 1994, 122–130. Bekker, J.C. “How Compatible is African Customary Law with Human Rights?” Tydskrif vir Hedendaagse Romeins-Hollandse Reg 1994, 440–447. Berkhout, S.J. “Threading the Transitional Maze: the South African Schools Bill, 1996” in J. De Groof & E. Bray (eds.), Education under the New Constitution in South Africa, Leuven, Acco, 1996, 105–118. Beukes, M. “The International (law) Dimension of Culture and Cultural Rights: Relevance for and Application in the ‘New’ South Africa,” South African Yearbook of International Law 1995, 126–143. Blaauw, L.C. Aspects of a Theory of Group Rights and Its Application to the South African Legal System, Pretoria, RGN-HSRC, 1986, 176 p. Blake, R.C. “The World’s Law in One Country: the South African Constitutional Court’s Use of Public International Law,” South African Law Journal 1998, 668–689. Bohler, N. “Equality Courts: Introducing the Possibility of Listening to Different Voices in South Africa,” Tydskrif vir Hedendaagse Romeins-Hollandse Reg 2000, 288–294. Bonthuys, E. The Legitimacy of Group Rights in the South African Legal System, LLM Paper, Stellenbosch, Stellenbosch University, 1993, 166 p. Bonthuys, E. & Du Plessis, L. “Whither the Validity of Marriages Concluded under a System of Religious Law under the Transitional Constitution?” SA Public Law 1995, 200–210. Bonthuys, E. & Pieterse, M. “Still Unclear: The Validity of Certain Customary Marriages in Terms of the Recognition of Customary Marriages Act,” Tydskrif vir Hedendaagse Romeins-Hollandse Reg 2000, 616–625. Booysen, H. Die Staatsregtelike en Volkeregtelike Verwesenliking van ‘n Afrikanervolkstaat, Pretoria, Volkstaat Council, 1997, 31 p. Botha, T. “The Role of Traditional Leaders in Local Government” in X (ed.) Seminar Report: The Role of Traditional Leaders in Local Government in South Africa, Johannesburg, KAS, October 1994, 28–33. Boulle, L.J. South Africa and the Consociational Option: A Constitutional Analysis, Kenwyn, Juta, 1984, 270 p. Brand, D. “Constitutional Language Rights in Canada and South Africa,” Tydskrif vir die Suid-Afrikaanse Reg 1997, 689–699. Bray, E. “Education in Transition: The Impact of the Draft South African Schools Bill of 1996” in J. De Groof & E. Bray (eds.), Education under the New Constitution in South Africa, Leuven, Acco, 1996, 35–54. Bronstein, V. “Reconceptualizing the Customary Law Debate in South Africa,” South African Journal of Human Rights 1998, 388–410. Brown, D. “Speaking in Tongues: Apartheid and Language in South Africa,” Perspectives in Education 1988–1989, 33–46. Burchell, J. “Media Freedom of Expression Scores as Strict Liability Receives the Red Card: National Media Ltd. V Bogshi,” South African Law Journal 1999, 1–11.

288

Bibliography

Burnham, M.A. “Cultivating a Seedling Charter: South Africa’s Court Grows its Constitution,” Michigan Journal of Race and Law 1997, 29–58. Burns, Y.M. “Freedom of Expression under the New Constitution,” Comparative and International Law Journal of South Africa 1997, 264–286. Butler, A.S. The 1996 Constitution Bill, Its Amending Power, and the Constitutional Principles (Occasional Papers), Joburg, KAS, July 1996, 28 p. Cachalia, F. “Minorities Don’t Need a Majority on the Constitutional Court,” Transact 1995, 10–11. Cachalia, F. “Citizenship, Muslim Family Law and a Future South African Constitution: a Preliminary Enquiry,” Tydskrif vir Hedendaagse Romeins-Hollandse Reg 1993, 392–413. Cameron, E. “Rights, Constitutionalism and the Rule of Law,” South African Law Journal 1997, 504–510. Carpenter, G. “Motifs Inscribed on Our Social Fabric—Equality in Brink v Kitshoff,” South African Journal of Human Rights 1997, 304–310. Carpenter, G. “Beyond Belief—Religious Freedom under the South African and American Constitution,” Tydskrif vir Hedendaagse Romeins-Hollandse Reg 1995, 684–695. Carrim, N. Education for Democracy: Democracy for Education. The South African Case: Final Report, Johannesburg, School of Education—University of the Witwatersrand, 2000, 103 p. Carrim, N. “Anti-Racism and the New South African Legal Order,” Cambridge Journal of Education 1998, 301–320. Carrim, N. “From ‘Race’ to Ethnicity: Shifts in the Educational Discourses of South Africa and Britain in the 1990s,” Compare 1995, 17–33. Carrim, N. “Working With and Through Difference in Antiracist Pedagogies,” International Studies in Sociology of Education 1995, 25–39. Carrim, N. Desegregation in Coloured and Indian Schooling, Johannesburg, University of the Witwatersrand, 1992, 35 p. Carrim, N. & Sayed, Y. “Open Schools: Reform or Transformation,” WIP 1992, 21–24. Carrim, N. & Sayed, Y. “Pay as You Learn,” WIP 1992, 28–29. Carrim, Y. “Nation-Building and the Commission” in X (ed.), Proceedings of a Conference held in Pretoria (18–19 March 1997) on the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, Pretoria, Volkstaat Council, 1997, 91–108. Carrim, Y. “Minorities Together and Apart” in W. James et al. (eds.), Now That We Are Free. Coloured Communities in a Democratic South Africa, Johannesburg, IDASA, 1996, 46–51. Chaskalson, A. “Judging Human Rights in South Africa,” European Human Rights Law Review 1998, 181–190. Chaskalson, M. “The Constitution and the Bill of Rights: Their Implications for Language Education” in D. Brown (ed.), Education Policy and Language Learning for a Multilingual Society, Durban, Education Policy Unit, 1997, 11–15. Chaskalson, M. & David, D. “Constitutionalism, The Rule of Law, and the First Certification Judgment: Ex Parte Chairperson of the Constitutional Assembly in Re: Certification of the Constitution of the Republic of South Africa 1996, 1996 (4) SA 744 (CC),” South African Journal of Human Rights 1997, 430–445.

Bibliography

289

Chaskalson, M. & Klaaren, J. “Provincial Government” in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, Kenwyn, Juta, loose-leaf, 4.1–4.26. Cheadle, H. & Davis, D. “The Application of the 1996 Constitution in the Private Sphere,” South African Journal of Human Rights 1997, 44–66. Clark, B. & Kerr, A.J. “Dependents Action for Loss of Support: Are Women Married by Islamic Rites Victims of Unfair Discrimination,” South African Law Journal 1999, 20–27. Cloete, F. “Local Government Transformation in South Africa” in B. De Villiers (ed.), Birth of a Constitution, Kenwyn, Juta, 1994, 294–308. Cloete, F. “Powers of Regions—A South African Perspective” in B. De Villiers & J. Sindane (eds.), Regionalism: Problems and Prospects, Pretoria, HSRC, 1993, 101–119. Christie, P. “Desegregating Schools in South Africa: The Case of the Catholic ‘Open’ Schools,” Discourse October 1989, 87–101. Cockrell, A. “Rainbow Jurisprudence,” South African Journal of Human Rights 1996, 1–39. Coetzee, T. Die Verrekening van die Etnisiteitsfktor in Grondwetskrywing in Suid-afrika— ’n Politikologiese Analyse, Universiteit van die Oranje-Vrijstaat, 1995, 145 p. Contralesa, Contralesa Position Paper on the Role of Hereditary Traditional Leadership under a Non-Racial Democracy, Marshalltown, 1993, unpublished but on file with the author. Corder, H. “Administrative Justice in the Final Constitution,” South African Journal of Human Rights 1997, 28–43. Corder, H. “Towards a South African Constitution,” Modern Law Review 1994, 491–528. Coveliers, H. & Veys, M. “De Zuid-Afrikaanse Grondwet van 1996,” Tijdschrift voor Bestuurswetenschappen en Publiek Recht 1998, 235–244. Cross, M. & Mkwanazi-Twala, Z. “The Dialectic of Unity and Diversity in Education: Its Implications for a National Curriculum in South Africa” in M. Cross et al. (eds.), Dealing with Diversity in South African Education. A Debate on the Politics of a National Curriculum, Kenwyn, Juta, 1998, 3–34. Crouse, C.F. “Welcoming Remarks” in X (ed.), Minorities: Self-Determination and Integration, Johannesburg, Missak Centre, 1988, each contribution is renumbered from p. 1. Currie, I. “Judicious Avoidance,” South African Journal of Human Rights 1999, 138–165. Currie, I. “Official Languages” in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, Kenwyn, Juta, loose-leaf, 37.1–37.15. Currie, I. “Indigenous Law” in id., 36.1–36.30. Currie, I. “Minority Rights: Education, Culture and Language” in id., 35.1–35.35. Currie, I. “The Future of Customary Law: Lessons from the Lobolo Debate,” Acta Juridica 1994, 146–168. Currin, B. & Kruger, J. “The Protection of Fundamental Rights in the Constitution of the Republic of South Africa: A Brief Contextualisation” in J. Kruger & B. Currin (eds.), Interpreting a Bill of Rights, Kenwyn, Juta, 1994, 132–149. Davenport, T.R.H. South Africa. A Modern History, Toronto, University of Toronto, 1991, 662 p. Davis, D. “Democracy and Integrity: Making Sense of the Constitution,” South African Journal of Human Rights 1998, 127–145.

290

Bibliography

De Coning, C. & Liebenberg, I. “Regional Demarcation—A South African Perspective” in B. De Villiers & J. Sindane (eds.), Regionalism. Problems and Prospects, Pretoria, HSRC, 1993, 32–69. De Klerk, G. “Three Languages in One School: A Multilingual Exploration in a Primary School” in K. Heugh (ed.), Multilingual Education for South Africa, Johannesburg, Heinemann, 1995, 28–33. De Klerk, W. “The Process of Political Negotiation: 1990–1993” in B. De Villiers (ed.), Birth of a Constitution, Kenwyn, Juta, 1994, 1–11. De Koker, J.Y. “Die Status van die Inheemse Reg in die Suid-Afrikaanse Regsisteem na 27 April 1994,” Tydskrif vir Regswetenskap 1996, 112–122. Desei, Z. “Enabling Policies, Disabling Practices,” paper presented at the tenth World Congress of Comparative Education Societies, 16 July 1998, unpublished but on file with the author. Desei, Z. “Linguistic Prospects for South Africa in the New Millenium—Reconciling the Tension between English and the African Languages” in H. Kotze (ed.), A Future for South Africa? Prospects for 1999 and Beyond, Stellenbosch, Centre for International and Comparative Analysis, 1997, 167–174. Desei, Z. “The Evolution of a Post-Apartheid Language Policy in South Africa: An Ongoing Site of Struggle,” European Journal of Intercultural Studies 1995, 18–25. Desei, Z. & Taylor, N. “Language and Education in South Africa” in X (ed.) Intercultural Education—World Yearbook of Education 1997, London, Kogan Page, 1997, 169–177. Devenish, G.E. “Human Rights in a Divided Society” in C. Gearty & A. Tomkins (eds.), Understanding Human Rights, London, Mansell, 1996, 60–90. De Villiers, B. “Volkeregtelike Beskerming van Minderheidsgroepe: Lesse vir die Staatsreg?” Tydskrif vir Hedendaagse Romeins-Hollandse Reg 1991, 189–203. De Villiers, B. “The Constitutional Principles—Content and Significance” in B. De Villiers (ed.), Birth of a Constitution, Kenwyn, Juta, 1994, 37–49. De Villiers, B. “The New Constitution: Framework and Protection of Human Rights,” Occasional Papers, July 1994, 7–20. De Villiers, F. Selected South African Legislation on Customary Law and Traditional Authorities (Occasional Papers), Johannesburg, KAS, December 1998, 143 p. De Vos, P. “Equality for All? A Critical Analysis of the Equality Jurisprudence of the Court,” Tydskrif vir Hedendaagse Romeins-Hollandse Reg 2000, 61–75. De Waal, J. “Political Rights” in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, Kenwyn, Juta, loose-leaf, 23.1–23.17. De Waal, J. “Standing, Ripeness and Mootness” in J. De Waal et al. (eds.), The Bill of Rights Handbook 1998, Kenwyn, Juta, 1998, 60–74. De Waal, J. “Equality” in J. De Waal et al. (eds.), The Bill of Rights Handbook 1998, Kenwyn, Juta, 1998, 152–174. De Waal, J. “Religion, Belief and Opinion” in J. De Waal et al. (eds.), The Bill of Rights Handbook 1998, Kenwyn, Juta, 1998, 225–233. De Waal, J. “Expression” in J. De Waal et al. (eds.), The Bill of Rights Handbook 1998, Kenwyn, Juta, 1998, 234–251. De Waal, J. “Assembly, Demonstration and Petition” in J. De Waal et al. (eds.), The Bill of Rights Handbook 1998, Kenwyn, Juta, 1998, 252–256. De Waal, J. “Is There a General and Residual Right to Procedural Fairness in South Africa?” South African Journal of Human Rights 1997, 228–248.

Bibliography

291

De Waal, J. & Currie, I. “Application of the Bill of Rights” in J. De Waal et al. (eds.), The Bill of Rights Handbook 1998, Kenwyn, Juta, 1998, 17–59. De Waal, J. & Currie, I. “Limitation” in J. De Waal et al. (eds.), The Bill of Rights Handbook 1998, Kenwyn, Juta, 1998, 112–129. Dlamini, C. “The Protection of Individual Rights and Minority Rights” in De Villiers, B. et al. (eds.), Institutional Development in Divided Societies, Pretoria, H.S.R.C., 1998, 55–92. Dlamini, C. “Culture, Education and Religion” in D. Van Wijk et al. (eds.), Rights and Constitutionalism. The New South African Legal Order, Kenwyn, Juta, 1994, 573–598. Dlamini, C.R.M. “Limitations on and Threats to University Autonomy and Academic Freedom,” Tydskrif vir Hedendaagse Romeins-Hollandse Reg 2000, 171–199. Donn, G. “Higher Education in South Africa: Transforming the System” in P. Kallaway et al. (eds.), Education After Apartheid: South African Education in Transition, Cape Town, UCT, 1997, 183–192. Dowling, T. & Maseko, P. “African Language Teaching at Universities” in K. Heugh (ed.), Multilingual Education for South Africa, Johannesburg, Heinemann, 1995, 100–106. Dube, E. “The Relationship between Racism and Education in South Africa,” Harvard Educational Review 1985, 86–100. Dugard, J. “The South African Judiciary and International Law in the Apartheid Era,” South African Journal of Human Rights 1998, 110–126. Dugard, J. “Is the Truth and Reconciliation Process Compatible with International Law? An Unanswered Question,” South African Journal of Human Rights 1997, 258–268. Dugard, J. “International Law and the ‘Final’ Constitution,” South African Journal of Human Rights 1995, 241–251. Dugard, J. “The Influence of Apartheid on the Development of UN Law Governing the Protection of Minorities,” updated until February 1994, unpublished but on file with the author. Du Plessis, L.M. “Just Legal Institutions in an Optimally Just South Africa under the 1996 Constitution,” Stellenbosch Law Review 1998, 239–255. Du Plessis, L.M. “Die Inhoud, Betekenis en Enkele Implikasies van Suid-Afrika se Eerste Mensregtehandves,” Politikon 1994, 20–41. Du Plessis, L.M. “The Genesis of the Chapter on Fundamental Rights in South Africa’s Transitional Constitution,” SA Public Law 1994, 1–21. Du Plessis, L.M. “A Background to Drafting the Chapter on Fundamental Rights” in B. De Villiers (ed.), Birth of a Constitution, Kenwyn, Juta, 1994, 89–100. Du Plessis, L.T. “The Pan South African Language Board’s Liason with the Commission” in X (ed.), Proceedings of a Conference Held in Pretoria (18–19 March 1997) on the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, Pretoria, Volkstaat Council, 1997, 134–146. Du Plessis, L.T. & Pretorius, J.L. “The Structure of the Official Language Clause. A Framework for its Implementation,” S.A. Public Law 2000, 505–526. Elazar, D. “Form of State: Federal, Unitary, or . . .” in B. De Villiers (ed.), Birth of a Constitution, Kenwyn, Juta, 1994, 29–36. Ellmann, S. “The New South African Constitution and Ethnic Division,” Columbia Human Rights Law Review 1994, 5–44. Ellman, S. “Federalism Awry: Government Structures in the Kwazulu Natal Constitution,” South African Journal of Human Rights 1993, 165–176.

292

Bibliography

Elof, T. “The Process of Giving Birth” in B. De Villiers (ed.), Birth of a Constitution, Kenwyn, Juta, 1994, 12–19. Erasmus, G. “The Constitutional Framework for the Adoption of Legislation on Education” in J. De Groof & E.F.J. Malherbe (eds.), Human Rights in South African Education. From the Constitutional Drawing Board to the Chalkboard, Leuven, Acco, 1997, 69–86. Erasmus, G. “Provincial Government under the 1993 Constitution. What Direction will it Take?” SA Public Law 1994, 407–429. Erasmus, G. “The New Constitutional Dispensation: What Type of System?” Politikon June 1994, 5–19. Erasmus, G. “Limitation and Suspension” in D. Van Wyk et al. (eds.), Rights and Constitutionalism. The New South African Legal Order, Kenwyn, Juta, 1994, 629–663. Erasmus, G. & De Waal, J. “Die Finale Grondwet: Legitimiteit en Ontstaan,” Stellenbosch Law Review 1997, 31–44. Fagan, A. “Dignity and Unfair Discrimination: A Value Misplaced and a Right Misunderstood,” South African Journal of Human Rights 1998, 220–247. Farlam, P. “The Ambit of the Right of Freedom of Religion: A Comment on S v Solberg,” South African Journal of Human Rights 1998, 298–326. Fataar, A. “Access to Schooling in a Post-Apartheid South Africa: Linking Concepts to Contexts” in P. Kallaway et al. (eds.), Education After Apartheid: South African Education in Transition, Cape Town, UCT, 1997, 68–85. Fedler, J. “Life” in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, Kenwyn, Juta, loose-leaf, 15.1–15.10. Freedman, W. “Formal versus Substantive Equality and the Jurisprudence of the Constitutional Court,” Tydskrif vir Hedendaagse Romeins-Hollandse Reg 2000, 314–320. Freedom Front, “What and Why a Volkstaat,” [www.vryheidsfront.co.za/english/ page17.html]. Freedom Front, “The Constitutional Package of the Freedom Front for Afrikaner SelfDetermination,” [www.vryheidsfront.co.za/english/page11.html]. Freedom Front, “Short, Medium and Long Term Strategy,” [www.vryheidsfront.co.za/ english/page8.html]. Freedom Front, First Commentary on “Afrikaner Self-Determination and the Way Forward,” A Facilitator’s Proposal of 6 February 1996, 9 February 1996. Galiguire, D. “Voices from the Communities” in W. James et al. (eds.), Now That We Are Free. Coloured Communities in a Democratic South Africa, Johannesburg, IDASA, 1996, 9–15. Giliomee, H. “The Majority, Minorities and Ex-Nationalities in South Africa and the Proposed Cultural Commission” in X (ed.), Seminar Report: The Constitutional Protection of Multiculturalism, Johannesburg, KAS, 1998, 37–45. Giliomee, H. “A Politically Incorrect View of Non-Racialism and Majority Rule” in W. James et al. (eds.), Now That We Are Free. Coloured Communities in a Democratic South Africa, Johannesburg, IDASA, 1996, 94–99. Giliomee, H. “The Beginning of Afrikaner Ethnic Consciousness 1950–1915” in L. Vail, (ed.), The Creation of Tribalism in Southern Africa, Berkeley, University of California, 1989, 21–50. Giliomee, H. & Schlemmer, L. (eds.). Negotiating South Africa’s Future, Johannesburg, Southern Book, 1983, 155 p. Gloppen, S. South Africa: The Battle over the Constitution, Vermont, Ashgate, 1997, 305 p.

Bibliography

293

Goldin, I. “Coloured Identity and Coloured Politics in the Western Cape Region of South Africa” in L. Vail, (ed.), The Creation of Tribalism in Southern Africa, Berkeley, University of California, 1989, 241–251. Goolan, N. “The ‘Potentially Polygamous Saga’: When Will It End?” Tydskrif vir Hedendaagse Romeins-Hollandse Reg 2000, 522–524. Greenstein, R. “Education, Identity and Curriculum: Policies in the New South Africa” in P. Kallaway et al. (eds.), Education After Apartheid: South African Education in Transition, Cape Town, UCT, 1997, 127–142. Hailbronner, K. & Kreuzer, C. Implementing Federalism in the Final Constitution of the Republic of South Africa (Occasional Papers), Johannesburg, KAS, September 1995, 33 p. Hanf, T. “The Prospects of Accommodation in Communal Conflicts: a Comparative Study” in H. Giliomee & L. Schlemmer (eds.), Negotiating South Africa’s Future, Johannesburg, Southern Book, 1983, 97–113. Harries, P. “Exclusion, Classification and Internal Colonialism: The Emergence of Ethnicity among the Tsonga-speakers of South Africa” in L. Vail, (ed.), The Creation of Tribalism in Southern Africa, Berkeley, University of California, 1989, 82–110. Hartshorne, K. “Language Policy in African Education: A Background to the Future” in R. Mesthrie (ed.), Language and Social History. Studies in South African Sociolinguistics, Claremont, David Philip, 1995, 306–318. Henderson, A.J.H. “Cry the Beloved Constitution? Constitutional Amendment, the Vanished Imperative of the Constitutional Principles and the Controlling Values of Section 1,” South African Law Journal 1997, 542–555. Henrard, K. “Het Grondwettelijk Hof van Zuid-Afrika: Samenstelling, Procedure en Belangrijke Ontwikkelingen in de Rechtspraak,” T.B.P. 1998, 853–863. Henrard, K. “The Internally Displaced in South Africa. The Strategy of Forced Removals and Apartheid,” Jura Falconis 1996, 491–522. Hemraj, M. “Indian Languages in South African Schools” in X (ed.), The Hindu 1995, South African Hindu Maha Sabha, 1995, 27–28. Heymans, C. “Local Government in South African Realities and Issues from the Past and for the Future,” Occasional Papers, October 1993, 11–21. Heyns, C., Van der Westhuizen, J. & Mayimele-Hashatse (eds.). Discrimination in the Law in South Africa: A Multi-Disciplinary Inquiry into De Facto Racial Discrimination, Pretoria, Centre for Human Rights, 1994, 287 p. Heyns, C. “African Human Rights Law and the European Convention,” South African Journal on Human Rights 1995, 252–263. Heugh, K. “Disabling and Enabling: Implications of Language Policy Trends in South Africa” in R. Mesthrie (ed.), Language and Social History. Studies in South African Sociolinguistics, Claremont, David Philip, 1995, 329–350. Heugh, K. “From Unequal Education to the Real Thing” in K. Heugh (ed.), Multilingual Education for South Africa, Johannesburg, Heinemann, 1995, 42–52. Heugh, K. & Sigrüghn, A. “Towards Implementing Multilingual Education in South Africa” in K. Heugh (ed.), Multilingual Education for South Africa, Johannesburg, Heinemann, 1995, 91–99. Heystek, J. “The Role of the Community in School Governance” in J. De Groof & E.F.J. Malherbe (eds.), Human Rights in South African Education. From the Constitutional Drawing Board to the Chalkboard, Leuven, Acco, 1997, 145–156.

294

Bibliography

Himonga, C. & Bosch, C. “The Application of African Customary Law under the Constitution of South Africa: Problems Solved or Just Beginning?” S.A.L.J. 2000, 306–341. Hlengwa, W. “The Role of Traditional Leaders in Local Government” in X (ed.), Seminar Report: The Role of Traditional Leaders in Local Government in South Africa, Johannesburg, KAS, October 1994, 34–36. Hofman, J. “Official Languages for a New South Africa: Article 5 of the ANC’s Draft Bill of Rights,” Stellenbosch Law Review 1993, 328–338. Holomisa, P. “The Relationship between the Council of Traditional Leaders and the Commission” in X (ed.), Proceedings of a Conference Held in Pretoria (18–19 March 1997) on the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, Pretoria, Volkstaat Council, 1997, 127–133. Holomisa, P. “The Role of Traditional Leaders in Local Government” in X (ed.), Seminar Report: The Role of Traditional Leaders in Local Government in South Africa, Johannesburg, KAS, October 1994, 37–39. HSRC Group Democracy and Governance, Final Report on the National Consultative Conference on Nation-Building Through the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (24 September 1998), Pretoria, HSRC, 1998, 15 p. HSRC Group Democracy and Governance, Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities—An Integrated Discussion Document, Pretoria, HSRC, 1998, 74 p. HSRC Group Democracy and Governance, Commission for the Promotion and Protection of Rights of Cultural, Religious and Linguistic Communities: a Report on Debates and Submissions, Pretoria, HSRC, 1998, 35 p. Hugo, P. “Affirmative Action as a Possible Response to Discrimination. The South African Debate on Affirmative Action: Learning Cues from India, Malaysia and Post-Independent Africa” in C. Heyns et al. (eds.), Discrimination and the Law in South Africa: a Multi-Disciplinary Inquiry into de facto Racial Discrimination, Vol. I, Pretoria, Centre for Human Rights, 1994, 219–227. Ismail, N. & Mphaisha, C.J.J. The Final Constitution of South Africa: Local Government Provisions and their Implications (Occasional Papers), Johannesburg, KAS, January 1997, 23 p. Iya, P.A. “Culture As a Tool of Division and Oppression: Towards a Meaningful Role for Culture and Customary Law in a United South Africa,” Comparative and International Law Journal of South Africa 1998, 228–242. Jansen, J.D. “Our Teachers See Children, Not Colour: The Politics of Diversity in South African School” in M. Cross et al. (eds.), Dealing with Diversity in South African Education. A Debate on the Politics of a National Curriculum, Kenwyn, Juta, 1998, 101–106. Jaquanth, S. “What Is the Difference? Group Categorisation in Pretoria City Council v Walker,” South African Journal of Human Rights 1999, 200–208. Johannessen, L. “A Critical View of the Constitutional Hate Speech Provision,” South African Journal of Human Rights 1997, 135–150. Jones, C. “Nation, State and Diversity” in X (ed.), Intercultural Education—World Yearbook of Education 1997, London, Kogan Page, 1997, 1–6. Jooste, C. “The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities” in X (ed.), Proceedings of a Conference

Bibliography

295

Held in Pretoria (18–19 March 1997) on the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, Pretoria, Volkstaat Council, 1997, 38–90. Jordan, P. “The South African Liberation Movement and the Making of a New Nation” in M. Van Diepen (ed.), The National Question in South Africa, London, Zed Books, 1988, 110–124. Jung, C. & Seekins, J. “ ‘That Time Was Apartheid, Now It’s the New South Africa’: Discourses of Race in Ruyterwacht” in W. Kymlicka & I. Shapiro (eds.), Ethnicity and Group Rights, New York, New York University, 1997, 504–539. Karlsson, J. “Partnerships in Current Educational Policy and Practice” in J. De Groof et al. (eds.), Power Sharing in Education: Dilemmas and Implications for Schools, Leuven, Acco, 1998, 35–48. Kashula, R.H. & Anthonissen, C. Communicating across Cultures in South Africa: Toward a Critical Language Awareness, Johannesburg, Hodder & Stoughton, 1995. Keightly, R. “Public International Law and the Final Constitution,” 1996, 405–418. Kentridge, J. “Equality” in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, Kenwyn, Juta, loose-leaf, 14.1–14.58. Kerr, A.J. “The Bill of Rights in the New Constitution and Customary Law,” South African Law Journal 1997, 346–355. King, M. & Van den Berg, O. One Nation, Many Languages: What Policy for Schools? Pietermaritzburg, Centaur, 1992, 57 p. Klaaren, J. “Federalism” in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, Kenwyn, Juta, loose-leaf, 5.1–5.15. Klaaren, J. “Structures of Government in the 1996 South African Constitution: Putting Democracy Back into Human Rights,” South African Journal of Human Rights 1997, 3–27. Klaaren, J. “Executive Council, Western Cape Legislature and Others v President of the Republic of South Africa and Others, CCT 27/95; 1995 (4) SA 877 (CC); 1995 (10) BCLR 1289 (CC),” South African Journal of Human Rights 1996, 158–162. Klug, H. “Historical Background” in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, Kenwyn, Juta, loose-leaf, 2.1–2.19. Klug, H. “Introducing the Devil: An Institutional Analysis of the Power of Constitutional Review,” South African Journal of Human Rights 1997, 185–207. Klug, H. “Striking Down Death—S v Makwanyane and Another CCT 3/94; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC),” South African Journal of Human Rights 1996, 61–70. King, M. & Van den Berg, O. One Nation, Many Languages: What Policy for Schools? Pietermaritzburg, Centaur Publications, 1992, 57 p. Koen, R. “The Language of Racism and the Criminal Justice System,” South African Journal of Human Rights 1995, 102–122. Konrad Adenauer Stiftung, Seminar Report: Aspects of Constitutional Development in South Africa: The First Working Draft of the Final Constitution, Johannesburg, KAS, 1995, 51 p. Kotze, H. Local Government in South Africa: Public and Opinion-Leader Perceptions of Selected Issues (Occasional Papers), Johannesburg, KAS, September 1998, 31. Kotze, H. Culture, Ethnicity and Religion: South African Perceptions of Social Identity (Occasional Papers), Johannesburg, KAS, April 1997, 20 p.

296

Bibliography

Kotze, H. (ed.). Parliamentary Dynamics. Understanding Political Life in the South African Parliament, Stellenbosch, Centre for International and Comparative Politics, 1996, 201 p. Kotze, H. (ed.). The Political Economy of Federalism in South Africa. Policy Opportunities and Constraints of the Interim Constitution, Stellenbosch, Centre for International and Comparative Politics, 1995, 182 p. Kotze, D. “The Provinces and Local Government,” Politeia 1996, 71–73. Kriek, D.J. “Unie of Federasie?” Politeia 1996, 62–64. Kriek, D.J. “The New Form of State in South Africa: a True Federation?” Politeia 1994, 118–120. Kriel, R.R. “Right to Education” in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, Kenwyn, Juta, loose-leaf, 38.1–38.25. Kriel, R.R. “On How to Deal with Textual Ambiguity,” South African Journal of Human Rights 1997, 311–315. Kruger, J. & Currin, S. (eds.). Interpreting a Bill of Rights, Kenwyn, Juta, 1994, 157 p. Kruss, G. “Educational Restructuring in South Africa at Provincial Level: the Case of the Western Cape” in P. Kallaway et al. (eds.), Education After Apartheid: South African Education in Transition, Cape Town, UCT, 1997, 86–107. Labuschagne, J.M.T. “Menseregtelike en Strafregtelike Bekamping van Groepsidentiteitsmatige Krenking en Geweld,” De Jure 1996, 23–49. Leibowitz, D. & Spitz, D. “Human Dignity” in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, Kenwyn, Juta, loose-leaf, 17.1–17.12. Leonardy, U. “South Africa’s Constitutional Provisions on Devolution and Federalism” in B. De Villiers (ed.), Birth of a Constitution, Kenwyn, Juta, 1994, 144–171. Liebenberg, P. “The Concept of Self-Determination: Some Perspectives and Implications” in X (ed.), Proceedings of a Conference held in Pretoria (18–19 March 1997) on the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, Pretoria, Volkstaat Council, 1997, 21–37. Lijphart, A. Powersharing in South Africa, Berkeley, University of California, 1985, 178 p. Loban, M. “Un Accord Négocié: le Processus Constitutionnel en Afrique du Sud depuis 1991,” R.D.P. 1997, 71–109. Loenen, T. “The Equality Clause in the South African Constitution: Some Remarks from a Comparative Perspective,” South African Journal of Human Rights 1997, 401–429. Louw-Potgieter, J. & Giles, H. “Imposed Identity and Linguistic Strategies” in W.B. Gudykunst (ed.), Language and Ethnic Identity, Clevedon, Multilingual Matters, 1988, 105–130. Louw, L. & Kendall, F. South Africa, the Solution, Ciskei, Amagi, 1987, 253 p. Luckett, K. “National Additive Bilingualism: Towards a Language Plan for South African Education” in K. Heugh (ed.), Multilingual Education for South Africa, Johannesburg, Heinemann, 1995, 73–78. Madonsela, T.N. Traditional Leaders, Customary Law and Fundamental Human Rights, report made for CALS, unpublished but on file with the author. Mahomed, I. “The Independence of the Judiciary,” South African Law Journal 1998, 658–667. Mahomed, I. “The Role of the Judiciary in a Constitutional State: Address at the First Orientation Course for New Judges,” South African Law Journal 1998, 111–115.

Bibliography

297

Maithufi, I.P. “The Constitutionality of the Rule of Primogeniture in Customary Law of Intestate Succession,” Tydskrif vir Hedendaagse Romeins-Hollandse Reg 1998, 142–147. Maithufi, I.P. “Possible Recognition of Polygamous Marriages: Ryland v Edros, 1997 (2) SA 690,” Tydskrif vir Hedendaagse Romeins-Hollandse Reg 1997, 695–699. Maithufi, I.P. “Customary Law of Marriage and a Bill of Rights in South Africa: Quo Vadis?” Tydskrif vir Hedendaagse Romeins-Hollandse Reg 1996, 298–304. Malan, K. “Oor Gelykheid en Minderheisbeskerming na Aanleiding van Ryland v Edros en Fraser v Children’s Court, Pretoria North,” Tydskrif vir Hedendaagse RomeinsHollandse Reg 1998, 300–312. Malherbe, E.G. Education in South Africa 1923–1975, II, Cape Town, Juta, 1977, 783 p. Malherbe, E.F.J. “Provinsiale Grondwette: ‘n Barometer van Provinsiale Outonomie?” Tydskrif vir die Suid-Afrikaanse Reg 1998, 344–355. Malherbe, E.F.J. “Reflections on the Background and Contents of the Education Clause in the South African Bill of Rights,” Journal of SA Law 1997, 85–99. Malherbe, E.F.J. “The Education Clause in the South African Bill of Rights: Background and Contents” in J. De Groof & E.F.J. Malherbe (eds.), Human Rights in South African Education. From the Constitutional Drawing Board to the Chalkboard, Leuven, Acco, 1997, 53–68. Manby, B. “South Africa: Minority Conflict and the Legacy of Minority Rule,” Fletcher Forum of World Affairs 1995, 27–52. Mandela, N. “Citizens of a Single Rainbow Nation” in W. James et al. (eds.), Now That We Are Free. Coloured Communities in a Democratic South Africa, Johannesburg, IDASA, 1996, 6–8. Marais, P. “Too Long in the Twilight” in W. James et al. (eds.), Now That We Are Free. Coloured Communities in a Democratic South Africa, Johannesburg, IDASA, 1996, 59–61. Marcus, G. & Spitz, D. “Expression” in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, Kenwyn, Juta, loose-leaf, 20.1–20.63. Mare, G. Ethnicity and Politics in South Africa, London, Zed Books, 1993, 125 p. Maritz, C. “The Necessity of ‘Breathing Space’ as an Ethno-Dynamic Factor” in X (ed.), Proceedings of a Conference held in Pretoria (18–19 March 1997) on the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, Pretoria, Volkstaat Council, 1997, 109–126. Marks, S. “Patriotism, Patriarchy and Purity: Natal and the Politics of Zulu Ethnic Consciousness” in L. Vail (ed.), The Creation of Tribalism in Southern Africa, Berkeley, University of California, 1989, 215–234. Masekela, B. “Cultural Diversity and National Identity” in W. James et al. (eds.), Now That We Are Free. Coloured Communities in a Democratic South Africa, Johannesburg, IDASA, 1996, 100–103. Mchunu, M.A. “Constitutional Provisions on the Role of Traditional Leaders and Local Government Councillors,” paper presented at the local government symposium, 11 February 1997, unpublished but on file with the author. McCormick, K. “Code-Switching, Code-Mixing and Convergence in Cape Town” in R. Mesthrie (ed.), Language and Social History. Studies in South African Sociolinguistics, Claremont, David Philip, 1995, 193–208. McLean, C.R. “Freedom of Religion and State Neutrality: A Philosophical Problem,” South African Law Journal 1997, 174–186.

298

Bibliography

McQuoid-Mason, D. “Privacy” in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, Kenwyn, Juta, loose-leaf, 18.1–18.16. Mdlalosa, F.T. “Catering for Minorities: the Kwazulu-Natal Indaba Approach” in X (ed.), Minorities: Self-Determination and Integration, Johannesburg, Missak Centre, 1998. All the contributions are renumbered from page 1. Mesthrie, R. “Language Change, Survival, Decline: Indian Languages in South Africa” in R. Mesthrie (ed.), Language and Social History. Studies in South African Sociolinguistics, Claremont, David Philip, 1995, 116–128. Meshtrie, R. Indian Languages Abroad: 137 Years of Indian Languages in South Africa, 1997, unpublished but on file with the author, 15 p. Mokgoro, Y. “Traditional Authority and Democracy in the Interim South African Constitution,” Occasional Papers (The Role of Tradtional Leaders in Local Government in South Africa), October 1994, 12–18. Moosa, N. “The Interim and the Final Constitutions and Muslim Personal Law: Implications for South African Muslim Women,” Stellenbosch Law Review 1998, 196–206. Mosikatsana, T.L. “The Hidden Architecture of Chapter 3: The Distinction Between Rights Analysis and Limitations Analysis and the Appropriate Allocation of Analytical Tasks,” South African Journal of Human Rights 1996, 115–131. Mtimkulu, P. “Traditional Leaders and the Constitution,” Politeia 1996, 88–91. Murray, C. “Race, Gender and African Customary Law” in C. Heyns et al. (eds.), Discrimination and the Law in South Africa. A Multi-Disciplinary Inquiry into de facto Racial Discrimination, Vol. I, Pretoria, Centre for Human Rights, 1994, 19–22. Mzala, C. “Revolutionary Theory on the National Question in South Africa” in M. Van Diepen (ed.), The National Question in South Africa, London, Zed Books, 1988, 30–55. Nadvi, H.H. Problems of Safeguarding the Muslim Personal Law in South Africa, a working paper submitted to the SALC in response to their questionnaire, 29 February 1988, not published but on file with the author. Nadvi, S.S. “Muslim Minorities” in X (ed.), Minorities: Self-Determination and Integration, Johannesburg, Missak Centre, 1988, all the contributions are renumbered from page 1. Ndlovu, J.J.M. “Exploring the Foundations and Implications of Education for a Multiethnic and Multicultural World Community” in M. Cross et al. (eds.), Dealing with Diversity in South African Education. A Debate on the Politics of a National Curriculum, Kenwyn, Juta, 1998, 37–47. NEPI Language Research Group, Report—A Project of the National Education Coordinating Committee, Cape Town, Oxford University, 1992, 103 p. Nguru, G.M. “Education and Democracy,” South African Journal of Education 1995, 59–62. Nkuhlu, W. “Affirmative Action for South Africa in Transition: From Theory to Practice” in C. Adams (ed.), Affirmative Action in a Democratic South Africa, Kenwyn, Juta, 1993, 11–20. Nicholson, R.B. “Ethnic Nationalism and Religious Exclusivism,” Politikon 1994, 49–63. Nqwena, C., “HIV in the Workplace: Protecting Rights to Equality and Privacy,” South African Journal of Human Rights 1999, 513–540. O’Malley, K. “The Interim Constituion: A Figleaf for Federalism,” Politeia 1996, 71–73. Oomen, B. “Group Rights in Post-Apartheid South Africa: the Case of the Traditional Leaders,” paper presented at IUAES Conference (Williamsburg, Virginia, 26 July–1 August 1998), unpublished but on file with the author, 20 p.

Bibliography

299

Pahad, E. “South African Indians as a National Minority in the National Question” in M. Van Diepen (ed.), The National Question in South Africa, London, Zed Books, 1988, 86–95. Pandya, N.D. “The Hindus in South Africa” in X (ed.), Minorities: Self-Determination and Integration, Johannesburg, Missak Centre, 1988. All the contributions are renumbered from page 1. Pantazis, A. “How to Decriminalize Gay Sex: National Coalition for Gay and Lesbian Equality v Minister of Justice,” South African Journal of Human Rights 1999, 188–191. Pelzer, A.N. Die Afrikaner Broederbond: Eerste 50 jaar, Tafelberg, 1980, 205 p. Pete, S. & Du Plessis, M. “A Rose by Any Other Name: ‘Biblical Correction’ in South African Schools,” South African Journal of Human Rights 2000, 97–120. Philippe, X. “République d’Afrique du Sud: de la Constitution Intérimaire à la Constitution Définitive,” Revue de Droit Belge et de Droit Comparé 1997, 45–59. Pieterse, M. “The Promotion of Equality and Prevention of Unfair Discrimination Act no 4 of 2000: Final Nail in the Customary Law Coffin?” South African Law Journal 2000, 626–635. Pieterse, M. “Traditional Leaders Win Battle in Undecided War: African National Congress v Minister of Local Government and Housing, Kwazulu-Natal,” South African Journal of Human Rights 1999, 179–187. Pimstone, G. The Constitutional Basis of Local Government in South Africa, Johannesburg, KAS, 1999, 44 p. Pimstone, G. Hate Speech, the Constitution and the Conduct of Elections (Occasional Papers), Johannesburg, KAS, 46 p. Pomeroy, W. “What Is the National Question in International Perspective?” in M. Van Diepen (ed.), The National Question in South Africa, London, Zed Books, 1988, 12–29. Potgieter, J. “The South African Schools Act, 1996: Comments on the Functions of School Governing Bodies, with Special Reference to Admission and Language Policies” in J. De Groof & E.F.J. Malherbe (eds.), Human Rights in South African Education. From the Constitutional Drawing Board to the Chalkboard, Leuven, Acco, 1997, 107–118. Potgieter, J. “The Right to Education and the Protection of Minorities in South Africa: A Preliminary Perspective” in J. De Groof & E. Bray (eds.), Education under the new Constitution in South Africa, Leuven, Acco, 1996, 169–176. Pretorius, J.L. “Minority Rights in Ideological Perspective. The Legacy of EthnoNationalism,” Tydskrif vir Regswetenskap 1991, 1–19. Prozesky, M. “Religious Justice at Last? Believers and the New Constitution in South Africa,” Journal of Theology of South Africa 1995, 11–21. Quarterly Review of Education and Training in South Africa, March 2001, focusing on Access, Redress and Quality in Education, Johannesburg, EPU, 35 p. Quarterly Review of Education and Training in South Africa, December 2000, focusing on Values in Education and the review of Curriculum 2005, Johannesburg, EPU, 29 p. Raad vir Geesteswetsenskaplike Navorsing (RGN) Hoofkomitee ondersoek na Tussengroepverhoudinge, Die Suid-Afrikaanse Samelewing: Werklikhede en Toekomsmoontlikhede, Pretoria, RGN, 1985, 190 p. Raath, A. “Self-Determination” in X (ed.), Seminar Report. Aspects of Constitutional Development in South Africa: The First Working Draft of the Final Constitution, Johannesburg, KAS, 1995, 23–27.

300

Bibliography

Rakate, P.K. “The Status of Traditional Courts under the Final Constitution,” Comparative and International Law Journal of South Africa 1997, 175–189. Rasool, E. “Unveiling the Heart of Fear” in W. James et al. (eds.), Now That We Are Free. Coloured Communities in a Democratic South Africa, Johannesburg, IDASA, 1996, 54–58. Rautenbach, I.M. “Die Verband tussen die Gelykheidsbepaling en die Algemen Beperkingsbepaling in die Handves van Regte,” Tydskrif vir die Suid-Afrikaanse Reg 1997, 571–583. Rautenbach, I.M. “The Bill of Rights Applies to Private Law and Binds Private Persons,” Tydskrif vir die Suid-Afrikaanse Reg 2000, 296–316. Reagan, T.G. “Language Planning and Language Policy in South Africa: a Perspective on the Future” in R. Mesthrie (ed.), Language and Social History. Studies in South African Sociolinguistics, Claremont, David Philip, 1995, 319–328. Reid, E. “Education and Linguistic Diversity” in X (ed.), Intercultural Education—World Yearbook of Education 1997, London, Kogan Page, 1997, 27–37. Retief, F.P. “Die Demokratisering van Onderwijs en Opleiding,” Tydskrif vir Geesteswtenskappe 1994, 138–147. Robbertze, P. “Cultural Councils for Ethnic (‘volks’) Groups in South Africa with Specific Reference to the Position of the Afrikaner” in X (ed.), Proceedings of a Conference Held in Pretoria (18–19 March 1997) on the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, Pretoria, Volkstaat Council, 1997, 179–201. Roberts, K. & Graham, H. (eds.), New Frontiers: the Kwazulu Natal Debates, Durban, CALS—University of Natal, 1987, 80 p. Robinson, K.L. “The Minority and Subordinate Status of African Women under Customary Law,” South African Journal of Human Rights 1995, 457–476. Robinson, T.S. “Race, Rights and Representation in a Cape Town Magistrate’s Court: Is a Colour Blind Constitutional Discourse Possible in Post-Apartheid South Africa?” South African Journal of Human Rights 1997, 581–601. Sachs, A. Language Rights in the New Constitution, Johannesburg, South African Constitution Studies Centre, 1994, 20 p. Sachs, A. Advancing Human Rights in South Africa, Cape Town, University Press, 1992, 244 p. Sachs, A. “Affirmative Action and Black Advancement in Business” in C. Adams (ed.), Affirmative Action in a Democratic South Africa, Kenwyn, Juta, 1993, 107–138. Sachs, A. “Reflections on Quota” in C. Adams (ed.), Affirmative Action in a Democratic South Africa, Kenwyn, Juta, 1993, 141–144. Sacks, V. “Multiculturalism, Constitutionalism and the South African Constitution,” Public Law 1997, 672–691. Sartori, G. “How Could the Constitution Limit Majority Rule,” Transact 1995, 4–5. Sayed, Y. & Carrim, N. “Inclusiveness and Participation in Discourses of Educational Governance in South Africa,” International Journal of Inclusive Education 1998, 29–43. Sayed, Y. & Carrim, N. “Democracy, Participation and Equity in Educational Governance,” South African Journal of Education 1997, 91–100. Schlemmer, L. “Education and Culture: Prospects for Progress and Peace in South Africa” in H. Kotze (ed.), A Future South Africa? Prospects for 1999

Bibliography

301

and Beyond, Stelllenbosch, Centre for International and Comparative Analysis, 1997, 149–166. Seriti, W. “Can a Provincial Legislature Use Only One Official Language,” De Rebus 1995, 46–47. Sinclair, J. & Bronstein, V. “Family Law” in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, Kenwyn, Juta, loose-leaf, 34.1–34.18. Shubane, K. “Regional Representation in Central Government—A South African Perspective” in B. De Villiers & J. Sindane (eds.), Regionalism. Problems and Prospects, Pretoria, HSRC, 171–191. Sisk, J. & Pronto, A. “The International Human Rights Norms in South Africa: The Jurisprudence of the Human Rights Committee,” South African Journal of Human Rights 1995, 438–456. Sizani, R. “Constitutional Provisions on the Role of Traditional Leaders,” paper presented at the Conference on Traditional Leaders, 13 March 1997, unpublished but on file with the author. Slabbert, S. “Researching the Language Context for Language Policy Decisions” in D. Brown (ed.), Education Policy and Language Learning for a Multilingual Society, Durban, Education Policy Unit, 1997, 35–37. Smith, N. “Freedom of Religion” in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, Kenwyn, Juta, loose-leaf, 19.1–19.18. Smith, N. “Freedom of Religion under the Final Constitution,” South African Law Journal 1997, 217–225. Smith, N. “Affirmative Action under the New Constitution,” South African Journal of Human Rights 1995, 84–101. Sonn, F. “Afrikaner Nationalism and Black Advancement as Two Sides of the Same Coin” in C. Adams (ed.), Affirmative Action in a Democratic South Africa, Kenwyn, Juta, 1993, 1–10. Sonn, J. “Breaking Down the Borders” in W. James et al. (eds.), Now That We Are Free. Coloured Communities in a Democratic South Africa, Johannesburg, IDASA, 1996, 62–69. Soudien, C. “The Debate on Equality and Equity in South African Education” in M. Cross et al. (eds.), Dealing with Diversity in South African Education. A Debate on the Politics of a National Curriculum, Kenwyn, Juta, 1998, 125–134. Soudien, C. “Dealing with Race: Laying Down Patterns for Multiculturalism in South Africa,” Interchange 1994, 281–294. South African Hindu Maha Sabha. Submission to NPNP Theme Committee 4 Regarding No 7 Religion, Belief and Opinion, Durban, South African Hindu Maha Sabha (document given to me by President Kalideen), 1995. South African Hindu Maha Sabha. The Hindu 1995, Durban, South African Hindu Maha Sabha, 1995, 44 p. South African Hindu Maha Sabha. SA Hindu Maha Sabha—80th Anniversary 1993, Durban, South African Hindu Maha Sabha. 1993, 80 p. South African Institute of Race Relations (SAIRR). South Africa Survey 1997–1998, Johannesburg, South African Institute of Race Relations, 1998, 583 p. South African Institute of Race Relations (SAIRR). Race Relations Survey 1994–5, Johannesburg, South African Institute of Race Relations, 1994, 674 p. Southall, R. “The South African Elections of 1994: the Remarking of a Dominant-Party State,” Journal of Modern African Studies 1994, 629–655.

302

Bibliography

Sparks, A. Tomorrow Is Another Country, Sandton, Struik, 1994, 254 p. Sprigman, C. & Osborne, M. “Du Plessis is not Dead: South Africa’s Final Constitution and the Application of the Bill of Rights to Private Disputes,” South African Journal of Human Rights 1999, 25–51. Squelch, J.M. “The Establishment of New Democratic School Governing Bodies: cooperation or coercion” in J. De Groof et al. (eds.), Power Sharing in Education: Dilemmas and Implications for Schools, Leuven, Acco, 1998, 101–114. Steenkamp, A.J. “The South African Constitution of 1993: An Evaluation in Light of International Human Rights Norms,” H.R.Q. 1995, 101–126. Stonier, J. “Intercultural Education in South Africa” in K. Cushner & P. Gagliardi (eds.), International Perspectives on Intercultural Education, to be published, on file with the author, 48 p. Strydom, H.A. “Minority Rights Issues in Post-Apartheid South Africa,” Loyola of Los Angeles International & Comparative Law Journal 1998, 873–914. Strydom, H.A. “Minority Rights Protection: Implementing International Standards,” South African Journal of Human Rights 1998, 373–387. Strydom, H.A. “Self-determination and the South African Interim Constitution,” South African Yearbook on International Law 1993–1994, 43–64. Thandabantu, N. “Cultural Diversity, Human Rights and the Family in Contemporary Africa: Lessons from the South African Constitutional Debate,” International Journal of Law and the Family, 1995, 208–225. Traill, A. “The Khoesan Languages of South Africa” in R. Mesthrie (ed.), Language and Social History. Studies in South African Sociolinguistics, Claremont, David Philip, 1995, 1–18. Unterhalter, D. “A Bill of Rights for South Africa-II: Group Rights,” Businessman’s Law 1989, 53–69. Unterkuffler-Freud, L.S. “Religious Guarantees in a Pluralistic Society: Values, Problems and Limits,” SA Public Law 1997, 34–52. Van Den Vyver, A.J. “Gelykberegtiging,” Tydskrif vir Hedendaagse Romeins-Hollandse Reg 1998, 367–399. Van der Meide, W. “Gender Equality versus Right to Culture,” South African Law Journal 1999, 100–112. Vanderwalt, A.J. & Botha, H. “Coming to Grips with the New Constitutional Order: Critical Comments on Harksen v Lane NO,” SA Public Law 1998, 17–41. Van Diepen, M. “Introduction” in M. Van Diepen (ed.), The National Question in South Africa, London, Zed Books, 1988, 4–11. Van Marle, K. “Equality: An Ethical Perspective,” Tydskrif vir Hedendaagse RomeinsHollandse Reg 2000, 595–597. Van Niekerk, G.J. “Indigenous Law, Public Policy and Narrative in the Courts,” Tydskrif vir Hedendaagse Romeins-Hollandse Reg 2000, 403–416. Van Pittius, A.G. “State Institutions Supporting Constitutional Democracy,” Politeia 1996, 78–80. Van Reenen, T.P. “Equality, Discrimination and Affirmative Action: An Analysis of Section 9 of the Constitution of the Republic of South Africa,” SA Public Law 1997, 151–165. Van Riet, C. & Erasmus, G. (eds.), Human Rights Practice 1997, Johannesburg, Joint Project between Lawyers for Human Rights and Practical Legal Training, 1997. Van Wyk, A. “The 1993 Constitution: the Essence and Spirit,” RSA Review 1994, 40–53.

Bibliography

303

Van Wyk, D. “Introduction to the South African Legal Order” in D. Van Wyk et al. (eds.), Rights and Constitutionalism: The New South African Legal Order, Kenwyn, Juta, 1994, 131–170. Van Wyk, D., Dugard, J., De Villiers, B. & Davis, D. (eds.). Rights and Constitutionalism: The New South African Legal Order, Kenwyn, Juta, 1994, 720 p. Van Zyl-Slabbert, F. “Key Issues in Post-Liberalism in South Africa” in H. Kotze (ed.), A Future South Africa? Prospects for 1999 and Beyond, Stellenbosch, Centre for International and Comparative Analysis, 1997, 9–20. Venter, A. Questions of National Identity in Post-Apartheid South Africa (Occasional Papers), Johannesburg, KAS, July 1998, 23 p. Venter, A. “The Protection of Cultural, Linguistic and Religious Rights: the Framework Provided by the Constitution of the Republic of South Africa, 1996” in X (ed.), Seminar Report: The Constitutional Protection of Multiculturalism, Johannesburg, KAS, 1998, 19–24. Venter, F. “Milestones in the Evolution of the New South African Constitution and Some of its Salient Features,” SA Public Law 1994, 211–221. Visagie, P.J. & Pretorius, J.L. “The Ideological Structure of the Minority Rights Discourse in South Africa,” SA Public Law 1993, 53–67. Vorster, L.P. “Chiefs in a Future South Africa,” Paper presented at the seminar, 7–8 May 1991, on the Place of Chiefs in a Future South Africa, unpublished but on file with the author. Watts, R.L. “Contemporary Views on Federalism” in B. De Villiers (ed.), Evaluating Federal Systems, Kenwyn, Juta, 1994, 1–29. Watts, R.L. “Is the New South African Constitution Federal or Unitary?” in B. De Villiers (ed.), Birth of a Constitution, Kenwyn, Juta, 1994, 75–88. Wehner, J. What Is the Future of South Africa’s Provinces?—Discussion Paper Series, Cape Town, AFREC, 1998, 36 p. Welsch, D. “Federalism and South Africa: The Future Is Not Yet Written” in Friedman & Humphries (eds.), Federalism and Its Foes, Johannesburg, Centre for Policy Studies, 1993, 56–76. Welsch, D. “Federalism and the Divided Society: A South African Perspective,” in B. de Villiers (ed.), Evaluating Federal Systems, Kenwyn, Juta, 1994, 243–250. Welsch, D. “The Provincial Boundary Demarcation Process” in B. De Villiers (ed.), Birth of a Constitution, Kenwyn, Juta, 1994, 223–229. Welsch, D. “Regional Institutions—A South African Perspective” in B. De Villiers & J. Sindane (eds.), Regionalism. Problems and Prospects, Pretoria, HSRC, 1993, 141–153. Wiechers, M. South African Political Terms, Cape Town, Tafelberg, 1989, 201 p. Wilkins, I. & Strijdom, H. The Broederbond, New York, Paddington, 1978, 458 p. Woolman, S. “Freedom of Assembly” in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, Kenwyn, Juta, loose-leaf, 21.1–21.12. Woolman, S. “Freedom of Association” in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, Kenwyn, Juta, loose-leaf, 22.1–22.11. Woolman, S. “Out of Order? Out of Balance? The Limitation Clause in the Final Constitution,” South African Journal of Human Rights 1997, 102–134. Woolman, S. & Davis, D. “The Last Laugh: Du Plessis v De Klerk: Classical Liberalism, Creole Liberalism and the Application of Fundamental Rights under the Interim and the Final Constitution,” South African Journal of Human Rights 1996, 361–404.

304

Bibliography

Worden, N. The Making of Modern South Africa. Conquest, Segregation and Apartheid, Oxford, Blackwell, 1994, 166 p. World Conference on Religion and Peace. Proceedings of the National Inter-faith Conference on Religion-State Relations, Cape Town, World Conference on Religion and Peace, 1991, 88 p. Young, D. “Preparing Teacher Trainees to Teach in Multlingual Classes” in K. Heugh (ed.), Multilingual Education for South Africa, Johannesburg, Heinemann, 1995, 107–112. Young, D. “The Role and Status of the First Language in Education in a Multilingual Society” in K. Heugh (ed.), Multilingual Education for South Africa, Johannesburg, Heinemann, 1995, 63–69. Zafar, S. School Based Initiatives to Address Racial and Cultural Diversity in Newly Integrating Public Schools, Durban, Education Policy Unit of the University of Natal, April 1998, 31 p. Zlotnick, M. “The Death Penalty and Public Opinion,” South African Journal of Human Rights 1996, 70–79.

News Sources Africa News Online: [www.africanews.org/south/southafrica] ANC Daily News Briefing is “a compilation of items from South African press agencies and as such does not reflect the views of the ANC”: [www.anc.org.za/cgibin/shownews], specific date. Business Day: [www.bday.co.za] Independent Online: [www.inc.co.za] Mail and Guardian: [www.mg.co.za/mg/news]

Speeches of Politicians Buthelezi, M. Presidential Address of July 22, 1995, “Whither South Africa: The Way Forward in a New Vision of Liberating Liberation for the Sake of Pluralism and Democracy for South Africa and for its Provinces, including the Kingdom of Kwazulu Natal,” 49 p. President Nelson Mandela, Address to the National Council of Provinces, Cape Town, 7 August 1998. President Nelson Mandela, Toespraak deurby die Geleentheid ter ontvangs van ‘n eregraad van die universiteit van Stellenbosch, Stellenbosch, 25 oktober 1996. President Nelson Mandela, Address to the Constitutional Assembly on the Occasion of the Adoption of the New Constitution, Cape Town, 8 May 1996. President of South Africa, Nelson Mandela, State of the Nation Address, Houses of Parliament, Cape Town, 24 May 1994. Nelson Mandela, Speech at the Freedom Day Celebrations—Union Buildings, Pretoria, 17 April 1995.

Index

Accommodation of Population Diversity, 39, 41–46, 74, 82–84, 104, 122, 124, 129, 151, 156, 171, 203, 265–268. See also Minority protection Acts of legislation: Employment Equity Act, 180–181; Higher Education Act, 192–193, 198; Local Government Municipal Structures Act, 218, 222; National Heritage Council Act, 220; National Heritage Resources Act, 220, 260 n.478; Population Registration Act, 47; Promotion of Equality and Prevention of Unfair Discrimination Act, 174–176; Recognition of Customary Marriages Act, 208, 214, 256 n.427; Renumeration of Public Office Bearers Act, 217; South African Schools Act, 191, 195, 198 Affirmative action. See Equality; Preferential treatment Afrikaans. See Languages Afrikaner: community, 150, 209, 212–213, 253 nn.375, 380; minority, 4, 122, 203, 267–268; population (group), 47–48, 73, 75, 114, 116, 149 Apartheid, 39–40, 46–56, 71; legacy of, 40–43, 71, 75, 84, 89 n.16, 109, 150–151, 168, 173, 224, 266; divide and

rule, 47, 74; education, 52–53, 194, 197; traditional leaders, 54; Grand Apartheid, 49–50, 71, 83, 114, 170; homelands, 49, 62 n.77, 68 n.167; and language, 50–51; religion, 51–52; segregation, 52 Assimilation, 4, 157, 220, 243 n.251, 253 n.374; prohibition of forced assimilation, 11 Autonomy, 19, 22. See also Provinces, autonomy Balancing act/process, 8, 39, 117, 171, 181, 187, 205, 214; proportionality, 4, 18, 120 Bill of Rights, 41, 56, 70, 76, 117, 126, 128, 147, 149, 152, 207; horizontal application of, 79, 106–107, 109–110, 133 n.78, 153, 266–267 Census, 44 Certification, of the 1996 Constitution, 73, 86, 122–129, 152 Christian National Education, 52–53, 66 n.136 Collective dimension, 152 Collective rights, 11, 83, 115, 117, 126, 128, 129 Colonialism, 47, 181

306

Colored: community, 173; minority, 44, 177; population group, 45, 48, 55, 150 Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, 41, 44, 114, 146, 201–203, 210, 248 n.313, 267. See also Section 185 Commission Communities Commission, 158 nn.7, 13. See also Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Conflict of rights, between individual and group rights, 17 Consociational democracy, 19, 78. See also Power sharing Constitutional Court, 69, 78, 108, 112, 121–123, 147; jurisprudence of, 110, 154; jurisprudence on equality, 167–173; jurisprudence on minority protection, 203–204. See also Certification, of the 1996 Constitution Constitutional negotiations, 41, 56; and MPNP (Multi Party Negotiation Process), 72–73, 75, 78; for the 1996 Constitution, 84, 87, 103–121; for the 1996 Constitution and time constraints, 73, 127; for the 1993 Constitution, and CODESA (Convention for a Democratic South Africa), 72, 75, 78; procedure/ process, 69, 72. See also Certification, of the 1996 Constitution Constitutional Principles, 41, 69, 73, 78, 82–87, 101 n.179, 113–115, 122–129, 133 n.61. See also Certification, of the 1996 Constitution Contralesa, 219 Conventions: European Charter on Regional and Minority Languages, 14–15, 19, 182; European Convention on Human Rights, 7–10, 15, 148, 152, 226 n.25; Framework Convention for the Protection of National Minorities, 14–15, 19; Genocide Convention, 12; International Convention on the Elimination of All Forms of Racial Discrimination, 12; International Covenant on Civil and Political Rights,

Index

article 27, 2–3, 5, 10, 17, 42, 115, 126, 128, 137 n.138, 199, 212; UNESCO Convention on the Elimination of Discrimination in Education, 13 Council on Higher Education, 192, 198 Courts: Community courts, 178; Equality courts, 174–176, 229 n.74; Traditional Courts, 218, 257 n.444 Cultural Councils, 115, 155, 201–202, 210, 267 Cultural groups, 116, 268 Cultural rights, 18; right to enjoy one’s own culture, 12, 76, 79, 115, 156, 215 Culture, 70, 219–221, 248 n.321, 255 n.415, 260 n.476; cultural diversity, 112, 117, 156, 191, 201, 203, 252 n.372, 264 n.518; cultural pluralism, 91 n.50 Customary law: conflicts of law, 214–215; conflict with Bill of Rights, 78, 80, 105–106, 126, 215–216; customary marriages, 208, 214; and the equality principle, 79, 106, 229 n.73; integration in the national legal system, 53, 126, 149, 213–216; succession, 215–216, 227 n.55, 256 n.427, 257 n.442 DACST (Department of Arts, Culture, Science and Technology), 186, 189–190, 219–220 Decentralization, 19; centralization, 77, 259 n.460 De Klerk, Frederik, 56, 70–71 Demarcation, Commission, 96 n.96 Democracy, 41, 112, 127, 145, 148, 156, 165; democratic election, 72 Democratization, 56, 174, 266. See also Transformation Desegregation, of the schooling system, 194 Discrimination: gender, 79, 175, 205, 215–216; indirect, 8, 74, 151, 170, 173, 191; racial, 12, 47, 153, 170, 173, 175, 210, 233 n.129, 245 n.277; racial discrimination and education, 76, 120, 198; religious, 51–52, 233 n.129, 243 n.253; unfair, 111, 167–168, 227 n.43, 241 n.242. See also Equality

Index

Education, 7, 120–121, 191; Council on Higher Education, 192, 198; curriculum, 19, 52, 193–195, 242 nn.244, 247, 248; equal access to, 75, 93 n.63, 121, 191–193, 241 n.231; language/medium of instruction, 9, 15, 51–52, 75, 93 n.65, 120–121, 195–198; mother tongue, 19, 40, 75, 196–197, 244 n.266, 245 n.274, 264 n.517; private educational institutions, 9–10, 13, 19, 76, 93 n. 68, 120–121, 198–199, 247 nn.299, 301; and religion, 52, 194–195, 244 n.256; single medium institutions, 53, 120–122, 187, 267 Employment Equity Act, 42, 159 n.20 Equality, 70, 84, 112, 122, 149; affirmative action, 43, 47, 91 n.46, 134 n.83, 184, 266; affirmative action and constitutional implementation, 176–181, 209, 229 n.83, 230 n.93, 233 n.130; affirmative action and the Final Constitution, 150–153; affirmative action and the Interim Constitution, 74; Employment Equity Act, 42, 159 n.20; formal equality, 74, 167; horizontal applicability of, 175, 229 n.72; non-discrimination, 8, 12–13, 167, 196; non-discrimination and constitutional implementation, 166–176, 187; non-discrimination and the Final Constitution, 109; non-discrimination and the Interim Constitution, 74, 76; non-discrimination and the recognition of Muslim marriages, 80; quotas, 178, 180, 192–193; substantive equality, 2–4, 16, 18–19, 22, 266; substantive equality and constitutional implementation, 167–169, 172, 179, 204, 224, 228 n.65; substantive equality and customary law, 78, 214; substantive equality and languages, 190; substantive equality and minority protection, 2–4, 204, 206–207; substantive equality and the Final Constitution, 108, 111, 117, 127, 149, 151, 153, 225 n.5, 249 n.332; substantive equality and the Interim Constitution, 74, 87. See also Preferential treatment; Redress measures

307

Escape clauses, 14, 20. See also Margin of appreciation Ethnic group, 4, 43, 45, 50, 71, 77, 179 Ethnic origin, 13, 228 n.70 Ethnicity, 40, 42, 47–49, 71, 114, 243 n.251, 248 n.317, 261 n.488; ethnic classifications, 71; ethnic diversity, 177; ethnic identification, 44, 46; Zulu ethnicity, 77. See also Equality; Race Form of state, 71, 77, 86, 88 n.7, 111, 221–222; federalism, 19, 70, 77, 83, 94 n.84, 124, 221–222, 261 n.488; government closer to the people, 86–87, 124. See also Local government; Provinces Freedom of assembly, 152, 266 Freedom of association, 7, 9, 152–153, 266 Freedom of expression, 7, 9, 104–105, 155, 266; hate speech, 104–105, 129 n.12, 130 n.19, 155, 174–175, 223 Freedom of religion, 7, 70, 154, 249 n.334, 267; and preamble of the Constitution, 106–7; religious holidays, 19; right to practice one’s own religion, 12; separation of church and state, 107, 154, 195, 204. See also Muslim personal law Genocide, 12 Government: of National Unity, 78, 86–87, 109, 132, n.58, 222; of provincial unity, 87. See also Power sharing Government closer to the people, 86–87, 124. See also Decentralization Group classification, 47–48, 55, 70, 178 Group dimension, 7–9, 11, 14, 18, 20, 147, 228 n.65, 266–267 Group rights, 11, 14, 22, 40, 47, 56, 71, 76, 129, 147, 178, 201, 267. See also Collective rights Homeland, 50, 72. See also Apartheid, Grand Apartheid Human rights, 6–10, 16, 211, 211, 216; and constitutional implementation, 253 n.383, 264 n.514, 265–268; and the Final Constitution, 145–148, 151–152, 155; and the Interim Constitution,

308

70–71, 74, 80–81. See also Bill of Rights Human Rights Commission of South Africa, 146, 157 nn.4, 5, 203, 223 IBA (Independent Broadcasting Authority), 220–221 Identity: Afrikaner, 59 n.21; colored, 48, 49 n.22; ethnic, 248 n.317; Indian, 49; minority, 13, 18, 146; religious, 195, 205; resurgence of ethnic/racial identification, 45; South African, 55, 58 n.14. See also Right to identity Indian: Community, 48, 173; minority, 44, 177; population group, 45, 48–49, 55, 150 International organizations: Council of Europe, 4, 14; EU, 3; ILO, 3; League of Nations, 1–2; OSCE, 3, 4, 13, 15; UNESCO, 3; United Nations, 2 Language: equal use of, 75; equitable treatment of, 119, 182; language status and the Final Constitution, 146–147; language status and the Interim Constitution, 75, 86; non-diminishment provision, 75, 118–119, 125; parity of esteem, 119, 182 regulation, 190; right to use one’s own language, 12, 76, 115, 156, 234 n.139; status, 41; use for government purposes, 44, 119, 183; use in the public sphere, 44, 187–190, 234 n.146. See also Lingua franca; Official languages Language awareness campaigns, 51, 197, 238 n.203, 246 n.281 Language Facilitation Program (at the University of the Orange Free State), 188 Language Plan for South Africa, 189–190, 238 n.204 Languages: African, 177, 181, 186, 197–198; Afrikaans, 43, 75, 118, 120, 125, 177, 181, 186–187, 189–190, 198, 209, 235 n.153, 246 n.288; Indian, 43, 48, 51, 197; indigenous, 51, 75, 118–19, 182–184, 189; Khoi and San, 43, 119, 185; Nguni, 43; Sotho, 43

Index

Language status, 120, 124–125, 127, 182; right to use one’s own language, 12, 76. See also Lingua franca Legitimate limitations, to human rights, 79, 104–105, 107, 117, 149–152, 161 nn.52, 54, 169, 249 n.334. See also Balancing act/process Liberation movement, 40 Limitations to majority rule, 41, 70, 85, 158 n.11, 163 n.87. See also Right to self-determination Lingua franca, 18, 43, 50, 118–119, 138 n.149, 187, 190 Linguistic diversity, 18, 118–19, 125, 146–147, 181, 183, 190 Linguistic groups/communities, 4, 14, 121, 126, 158 n.7, 179, 188, 190 Local government, 113, 124, 131, 184, 218, 221, 259 n.460. See also Form of state Mandela, Nelson, 219 Margin of appreciation: for states, 14, 183; and state discretion, 13, 116, 126, 217 Minorities: Afrikaner, 4, 122, 203, 267–268; colored, 44, 177; definition, 4, 265; ethnic, 6, 116, 155, 191; Indian, 44, 177; linguistic, 6, 18, 190, 223; national, 6; racial, 170; religious, 6, 206; and South Africa, 40, 42–46, 233 n.131 Minority political parties, 78, 88 n.2, 109, 222 Minority protection: adequate system of, 23, 151, 165; and Constitutional Implementation, 197, 199, 204–223; double track of, 3, 74, 151, 167; and the final Constitution, 118, 122, 127, 145–157; and the Interim Constitution, 73, 76, 85–87. See also Identity Minority rights, 10–21, 103, 117, 129, 149, 151, 154–156, 199–204, 223–224, 265–268 Mono-lingualism, 118 Multi-culturalism, 70, 147, 203, 220, 224, 242 n.248, 268 Multi-lingualism, 41, 50, 139 n.171, 149, 156, 182, 185, 189, 196, 223–224, 241 n.227, 242 n.248, 267, 268; functional multi-lingualism, 185, 190

Index

Multi-racial elections, 56 Municipalities. See Local government Muslim personal law: compatibility with Bill of Rights, 208; integration into the national legal system, 154, 156, 204–209, 223; Muslim marriages, 52, 86, 204–209; Muslim marriages and recognition, 52, 80, 154, 156, 204–209, 214 Nation building, 74, 84, 87, 112–113, 116–117, 122, 150, 156–157, 187, 194, 201, 220, 223 National origin, 13 National question, 40, 57 n.5, 58 n.14, 116 National unity, 55, 74, 86, 117, 149–150, 157, 187, 201, 264 n.516 Nationalism, Afrikaner, 50, 253 n.381 NCOP (National Council of Provinces), 113, 136 n.108, 222 Nondominance, 5, 138 n.149, 152 Non-racialism, 55, 112, 190, 194, 211. See also Discrimation; Equality Official languages, 43, 45, 47, 51, 75, 92 n.53, 118, 148, 182–183, 197, 235 n.157 Orania. See Volksstaat PANSALB (Pan South African Language Board), 119, 125, 146, 156, 185–187, 197, 203, 236 n.174; and investigation of language complaints, 185–186, 236 n.174; and multilingualism, 75, 147, 158 nn.7, 10, 185–187, 236 n.174 Plural society/societies, 14, 39–40, 42, 268 Polygamous marriages, 205, 208. See also Customary law; Muslim personal law Population groups, relative territorial concentrations of, 18, 44–45, 77, 111, 113, 156, 183, 221–222 Positive (state) obligation, 8, 12, 13, 126 Power sharing, 71, 76, 78, 108, 222–223, 262 n.505; consociational democracy, 19, 78. See also Government of National Unity Preferential treatment, 48

309

Previously disadvantaged communities, 179, 191, 240 n.223 Privileges, 47, 114, 117, 122, 127, 170–171, 177–178, 181 Proportionality, 4, 18, 120 Protestant hegemony, 51 Provinces: autonomy, 112, 124, 136 n.120, 149, 221, 261 n.491; competencies, 73, 77, 83, 95 n.95, 103, 112, 128, 222, 262 nn.493, 494; constitution, 77, 82, 95 n.87, 112, 128, 222; constitution and Kwazulu-Natal, 83, 127; demarcation, 96 n.96. See also Form of state Public service/administration, transformation, 110–111, 135 n.88, 179–180, 232 n.111. See also Equality; Preferential treatment Quotas, 178, 180, 192–193 Race, 12, 40, 46–47, 177, 231 nn.94, 104, 243 n.251, 263 n.510; racial classifications, 43, 47–48, 53, 80, 146; racism, 48, 191, 223, 239 n.212, 243 n.250, 253 n.374, 263 n.508. See also Discrimination, racial; Equality; Ethnicity; Preferential treatment Redress measures (for previously disadvantaged population groups), 43, 74, 111, 151, 169, 171, 176, 192–193, 204, 220, 229 n.81, 240 n.223, 245 n.277, 260 n.476, 266. See also Equality, affirmative action; Preferential treatment Religion: Christianity, 45, 49, 51, 154, 204, 243 n.254; Hinduism, 45, 49, 250 n.336; Islam, 49; Judaism, 45, 250 n.335; Rastafarian, 191; religious diversity, 45, 154, 191, 195, 209, 250 n.335; religious exemption, 243 n.254, 249 n.334; religious holidays, 19, 98 n.130, 243 n.253, 250 n.336; secular state, 106–107; separation of church and state, 107, 154, 195, 204. See also Muslim personal law Religious groups/communities, 4, 18, 179, 195, 209

310

Right to identity, 2–3, 8, 12–13, 16, 18–20, 115–117, 138 n.154, 148, 152, 165, 181–182, 199, 212–213, 221, 265–268 Right to respect of privacy, 7, 153, 162 n.65 Right to self-determination, 10, 20–23, 41, 49–50, 82–83, 114, 116, 126, 128, 151, 210–212, 265–268; and decolonization, 21; external self-determination, 22, 82–83, 210–212; internal selfdetermination, 10, 22, 82–85, 149, 151, 155–56, 203, 210–212, 219, 222, 267; national self-determination, 40; and sovereign independence, 6, 21. See also Secession; Volksstaat Secession, 21, 82–83, 150; secessionist movements, 16; as ultimum remedium, 22 Section 185 Commission, 210. See also Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Secular state, 106–107 Segregation, 47, 49, 53–54 Separate development, 40, 49, 55. See also Apartheid, Grand Apartheid Separation of church and state, 107, 154, 195, 204 Sliding scale approach, 18, 184, 190, 239 n.215 South African Law Commission, 70, 205, 213–214

Index

Territorial integrity (of states), principle of, 21 Traditional leaders, 40, 47, 53, 86, 106, 258 n.455; and the final Constitution, 126–127, 143 n.238, 149, 156, 216–219, 223; and the Interim Constitution, 78, 81–82; National House/Council of, 82, 99 n.147, 106, 131 n.39, 217, 219; Provincial House of, 82, 106, 219, 259 n.468 Transformation, 39–40, 87, 112, 123, 151, 166, 204, 268; democratization, 56, 174, 266 UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities, 2, 11, 19 Unity in diversity, 39, 41, 58 n.14, 117, 122, 150–151, 156, 165, 201, 220–221, 223, 264 n.516, 266 Verwoerd, Hendrik, 120 Volksstaat, 82–83, 104, 114, 116, 126, 136 n.121, 209–213, 223, 252 n.374, 254 nn.388, 397, 267; Orania, 212–213; Volksstaat Council, 83, 85, 87–88, 100 n.165, 116, 211, 254 n.387. See also Right to self-determination Voting patterns, ethnic/racial, 46, 109

About the Author KRISTIN HENRARD is a lecturer in the Department of International and Constitutional Law at the University of Groningen in the Netherlands. Her main publications pertain to human rights, minority rights, and constitutional law.