SPEECH: THE RENATE BARNARD JUDGMENT AND ITS IMPLICATIONS FOR OUR CONSTITUTIONAL ACCORD

Dave Steward The judgment last week of the Constitutional Court in Renate Barnard raises questions as to whether the foundational value of non-racialism is still applicable to white South Africans.

In so doing it strikes another blow at the national accord on which our new society has been constructed.

Section 9 of the Constitution was one of the most carefully negotiated elements of our accord. It sought to strike a balance between the need for measures to promote the equality of those who were disadvantaged by past discrimination, on the one hand, and the need to avoid unfair discrimination on a number of grounds, on the other.

The Barnard judgment upsets this balance. It reinforces the Court’s finding in Minister of Finance v Van Heerden that affirmative action in terms of section 9(2) of the Constitution is automatically fair provided only that the measures involved:

a)     target a particular class of people who have been susceptible to unfair discrimination;

b)     are designed to protect or advance those classes of persons; and

c)     promote the achievement of equality.

In the Barnard judgment the Court reaffirmed that “once the measure in question passes the test, it is neither unfair nor presumed to be unfair”. 

According to the Van Heerden judgment the only other limitation placed on affirmative action in terms of section 9(2) was that it “… should not constitute an abuse of power or impose such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal (of a non-racial society) would be threatened.” 

This formulation must be carefully analysed because it poses a potentially fatal threat to the constitutional accord that we thought that all our people had reached in December 1993.

What the Court was saying was that

It is, in effect, a prescription for, and validation of, harmful discrimination against millions of South African citizens for an indefinite period, on no basis other than their race - and with no reference to their individual merits, circumstances or concerns.