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ARTICLE: THE CONSTITUTIONAL COURT IMPLIES THAT CULTURAL TRADITION FOUNDED IN HISTORY FINDS NO RECOGNITION IN THE CONSTITUTION

CREDIT IOLThe renaming of streets and places must be handled with the greatest sensitivity. All South Africans should feel that they and their cultures are fully represented in street and place names. The Constitution declares that South Africa belongs to us all, united in our diversity.

The recent Constitutional Court judgment in City of Tshwane Metropolitan Municipality v AfriForum regarding the renaming of streets in Pretoria shows how important it is for all sides to deal with contentious issues arising from our deeply divided past with the greatest sensitivity. The judgment has implications that far transcend the question of geographic place names.  Indeed, it appears to deprive white South Africans of their constitutional right to enjoy many aspects of their culture and raises serious questions regarding South Africa’s future as a society that honours the diversity of all its communities.  As Judges Cameron and Froneman observed in their dissenting judgment, “the implication that may be drawn from the first judgment is that any reliance by white South Africans, particularly white Afrikaner people, on a cultural tradition founded in history, finds no recognition in the Constitution, because that history is inevitably rooted in oppression”.  

The case arose from AfriForum’s decision to challenge the replacement of Pretoria street names - rooted in Afrikaner history - with the names of ANC struggle heroes. AfriForum secured an interim court order prohibiting the City Council from changing street names until it had carried out a proper consultation process and pending the result of a court review. The interim order was appealed to a full bench of the High Court.  The full bench upheld the interim order because appeals against interim orders are not generally allowed and because Afriforum’s argument that the City “failed to perform a proper public participation process” was “unassailable”.

The full bench refused the City leave to appeal whereupon the City approached the Constitutional Court directly.

The Constitutional Court upheld the right of the City to appeal, thereby - according to Judges Froneman and Cameron - “attenuating well-established and sensible rules and principles for hearing appeals against the grant of temporary interdicts.”

In vigorously dealing with the question of the renaming of streets the Constitutional Court came down decisively on the liberation side of South African history. It declared that South Africa was “literally the last African country to be liberated from the system that found nothing wrong with the institutionalised oppression of one racial group by another for no other reason but the colour of their skin, shape of their nose and the length or texture of their hair.”

“Virtually all recognition and honour was thus respectively given to and bestowed upon white history and their heroes and heroines. The system was all about the entrenchment of white supremacy and privilege and black inferiority and disadvantage. No wonder the United Nations resolved that that system was a crime against humanity.”

After stressing “the need to respect white and black South Africans who played a crucial role in building and developing South Africa…” the majority judgment did exactly the opposite. It declared that “the effects of the system of racial, ethnic and tribal stratification of the past must thus be destroyed and buried permanently”. It added that this “would be achieved partly by removing from our cities, towns, “dorpies”, streets, parks, game reserves and institutions, names that exalt elements of our past that cause grief to other racial groups or reopen their supposedly healing wounds.” “Even some innocuous names that give recognition only to the history, language, culture or people of one race” should be removed “so as to make way for the heritage and deserving heroes and heroines of the previously excluded.”

The majority judges then went on to declare that “all peace and reconciliation-loving South Africans whose world-view is inspired by our constitutional vision must embrace the African philosophy of ubuntu.” “The African world-outlook that one only becomes complete when others are appreciated, accommodated and respected, must also enjoy prominence in our approach and attitudes to all matters of importance in this country, including name-changing.”

Where the views of the majority judges on the cultural heritage of white South Africans were, according to Judges Froneman and Cameron, implicit, those of Judge Jafta, in his separate judgment, were bluntly explicit: “How” he asked, can the “unquestionably transformative Constitution be expected to recognise cultural traditions rooted in the racist past? The answer must be, if there is such expectation, that it is misplaced.”

He added that “racist and oppressive cultural traditions have no place in our constitutional order, even though they may exist in history. In contrast, such traditions belong in the dust-bins of history where they ought to be buried.” “This” he concluded, “is a clear indication that any claim to the enjoyment of culture may not include an entitlement to racist and oppressive cultural traditions of the colonial and apartheid era.”

After correctly taking AfriForum to task for referring to the “so-called injustices of apartheid”, Judges Froneman and Cameron asked what the majority judgment meant in practical terms? “Does it entail that, as a general proposition, white Afrikaner people and white South Africans have no cultural rights that pre-date 1994, unless they can be shown not to be rooted in oppression?” Referring to the “many cultural, religious or associational organisations that have roots in our divided and oppressive past” Froneman and Cameron asked whether they are “all now constitutional outcasts, merely because of a history tainted by bloodshed or racism?”

The judgment has other very disturbing implications. Does it mean that the history of white South Africans is nothing but a one-dimensional litany of oppression? Was there nothing since 1652 that is worthy of commemoration and celebration? What about the second Anglo-Boer War - the greatest anti-colonial struggle ever fought by an African people?  What of figures like Jan van Riebeeck, Wolraad Woltemade, Piet Retief, Jan Smuts and Louis Botha - are they to be viewed only through an oppression/liberation prism?

What does the judgment mean for the foundational right of white South Africans to human dignity - with which their cultural and historical identities are inextricably linked? How can they be regarded as having a right to equality if their history condemns them to moral inferiority? Must they now discard their heritage and “embrace the African philosophy of ‘ubuntu’” and strive to be more like Bram Fischer and Beyers Naude - the ‘good’ whites cited by the majority judges?

As stated above, the renaming of streets and places must be handled with the greatest sensitivity. Black South Africans should feel that their history and cultures are fully represented in street and place names. The same, however, applies to minorities. The Constitution declares that South Africa belongs to us all, united in our diversity.

The Constitutional Court is correct that these questions should be approached on the basis set out in the preamble to our Constitution that recognises the injustices of the past but also respects those who have worked to build and develop the country.  The Court is quite right when it states that “inclusivity, unity in diversity, recognition of the culture and history of white and black South Africans and reconciliation are our chosen paths to the prosperous future” - and that in terms of ubuntu “one only becomes complete when others are appreciated, accommodated and respected.” But how can these noble sentiments be reconciled with Judge Jafta’s decision to consign most of the heroes, traditions and histories of minorities into the “dustbin of history”? 

By Dave Steward, Chairman of the FW de Klerk Foundation

Photo credit: www.iol.co.za

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