+(,121/,1( Citation: 129 S. African L.J. 73 2012 Content downloaded/printed from HeinOnline (http://heinonline.org) Thu Nov 26 02:19:55 2015 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0038-2388 THE PAST IS UNPREDICTABLE: RACE, REDRESS AND REMEMBRANCE IN THE SO0(UTTH AFRICAN CONSTITUTTION* PIERRE DE VOS Claude Leon FoundationChair in ConstitutionalGoernance, University of Cape Toum The notion of race conunues to permeate every aspect of both public and private life in South Afrca Race insinuates itself into our responses to situationa people and even when we claim that we hove escaped the perceived shackles of race, we are meiely confening its presence by ourestated yearning for it absen c. Against this backgrond, and given the consti tutional coinmiitmnent to non-racialsim, somec academis and commnen- tators arfue afainst the use of race-based correctue miasures on the basis that such mneasures perpetuate rocial thinking an d entiench racial identities, ins'tead of helping us to imove anway froui them. In the artic the anthocr takes issue with this~view, coiiteiiding that the ijfects ofpast and oii-going rocim aind racial disciinatioin cainot be addIress~ed iieiely by assumning that the coii nseiieces of racc iinclnuding racismi - cai be add/resse~d b y attendiny to the miaterial conditions of iineqiiality aiid by igiioring race. Whlat is required i to question thecpositions aiid discoiirses of privilege and doiminaiice that stemi fromi aii id/eology of white supeioity and hieiemoiiy aind to engage more citically an d in a nainced mainnei with the power of race aidIthe effects of ongoing racismn aind roeial discriimiation. I INTRODUCTION 'R acei not an element ofbhuman biology (like breathing oxy gen or reprodlucing sexually); nor is it even an idea (like the speed nf light nr the value nf i) that can be plausibly imsagiined rn liv e an eternsal life ot its onixi Race is nnr an idea but an ideology. It canme into existence at a discernible historical moment for rationally understandable historical reasons and is subject to change for similar reasons.II 'It did not rake me long to understand that I knexw and spoke more Afrikaans than I cared to ad/mit. How could it be otherwxise? Afrikaans was all around me when I was growsig up. It was the lansguage ot potwer; the languiage that gave words such as swartes (blacks), leuroling (coloured), net blankes (whites only) and geen ingang (no entry) their menace. Afrikaans wxas also the languagc that gave the wxorld "apartheid": a wxord that has so seared itself ito the global iimagiinatioin that it requires no translation. But that i nor all there was~to Afrikaan. It was also the granmiar for the tsotsitaal I heard spoken by older boys on the street; the syntax at the heart of adult conversation from wxhich children in my house wxere excluded. What' smore, Afrikaas xwas the lainguage ot Gerhardus Christiaarn Coetzee, the boxinig hero wxhose very nam e was as Afrikaarns as a inaime could ev er be '2 * This is an edited v ersion ot an inaugural lecture presented at the Uiniversity of Cape Toxxn on 14 September 2011. I wxould like to thank Professor Hugh Corder and Professor Jaco Barnard-Naudh for conmments provided on a first draft of this article. SBarbara Jean Fields 'Slavery, race and ideology in the United States ofAmerica' (1990) 181 Ne'wLeft Review 95 at 101. Jacob Dlaminii Native Nostalgia (2010). Jacob Dlaminii is a 2009 Ruth First Fel- lows 73 74 (2012) 129 THE SOUTH AFRICAN LAW JOURNAL Much ink has been spilt about the criteria used by the University of Cape Town (UCT) to make decisions about the admission of students to its various academic programmes. Several UCT academics,3 political leaders 4 opinion- makers" and members of the public6 have objected to this policy, calling it 'racist' and a form of 'reverse-discrimination'. In one instance a commenta- tor, perhaps having been overcome by a momentary amnesia about South Africa's recent past and getting slightly carried away by his own indignation, describing it as similar to the 'policy applied to Jews at German universities by an edict signed in 1933 by Adolf Hitler'.7 Opposition to the UCT admissions policy is based on the fact that it divides South African applicants into categories: thosejudged to have been affected by inequality and disadvantage (the 'redress category'), and those who have not (the 'open category'). The policy fuirther subdivides the former category into sub-categories based on whether the applicant is deemed to be 'black'. 'indian', 'coloured' or 'chinese' and sets different criteria for admitting members of each of these See for example David Benatar 'Justice, diversity and racial prefererce: A cri- tique of affirmative action' (2008) 125 SAL]274 and Neville Alexander 'We'll pay the price for race cowardice' Cape Timies, 15June 2010 available at http:wiwut .ac.za/ downloads/uct.ac.za/news/media/oped/NeilleAlexander06_2010 pdj accessed on 3 Sep- ternber 2011. 4 See for example Dr Gavin Lewis, Democratic Alliance N4PL 'Great insight, Amanda' in Busines Day, 7 June 2011 available at http://wtowrac .za/downloads uct.ac.za/news /media oped/gavuinewis June.pd aessed,, on 3 September 2011. James Myburgh 'Racial quotas at UCT' Politics wb, 12 May 2011 available at http://TView.pliticsw eb co a/ poi w viewPi pcliticsweb/enpajge71619?oid=235701 &n =Detail&pi = 1616, accessed on 3 September '11. 'See for example Amanda Ngwenya 'UCT admission policy perpetuates a perverse idea of fairness' Busi,ns Day, 6 June 2011 available at http:// iitri businessday.co.za/articles/Content.asp x?id=144848, accessed on 3 September 2011; and Celia W Dugger 'Campus that apartheid ruled faces a policy rift' The New York Tmes 22 November 2010 available at http:/1111c ai ausr/about/intro transformation/new york tiiies.pdf, accessed on 3 September 2011 and many other contributions. See generally http://wwwuctacza/print/ news talkigpoints/adision archive/. See Ken Ow en 'Hitler's policy at UCT' Business Day, 24June 2011 available at http://www.businessday.co.za/articles/Content.aspx?id=146718, accessed on 3 Septem- ber 2011. a Throughout this article I place these racial denorinators in quotation marks to signal my belief that these identity categories are constructed and contingent. While race is experienced as very real by all of us and while we often assume that a person's race indicates something true and profound about that individual person's beliefs, attitudes or characteristics, I wish to question the stability and normality of the use of these racial categories, while - at the sarne time - wishing to acknowledge the power these categories still exert over all of us. By doing so I am not wishing to ask questions about the 'truth ofrace'- whether race as a concept is problematic because it falsely represents 'reality'. Instead, I wish to pose questions about whose truth and what truth is being served by the deployment of racial categories within a traditional racial hierarchy. I contend that race is a position within a broad social network: different societies might conceptualise and engage with race in different ways, depending on the particular history of that society and the way in which the discourse THE PAST IS UNPREDICTABLE 75 sub-categories competing for places in the redress part of the admission's process.' Opponents of this admissions policy often invoke the founding values of the South African Constitution. which include 'human dignity, the achievement of equality and the advancement of human rights and freedoms' as well as 'non-racialism and non-sexism', I" arguing that it is constitutionally impermissible to rely on race as a criteria for admitting students to university (or as a criteria for any other formi of redress) and that such a reliance perpetuates race-based thinking.' 1 In order to get beyond race and leave our of race has developed and has been and continues to be deployed in that society. However, in this article, my engagement with race is decidedly from a South Ajfican perspective. This South African perspective requires us to engage with racial catego ries in a particular manner. And as Deborah Posel explains, after 'decades of racial reasoning, the idea that South African society comprises four distinct races 'whites', 'coloureds', 'indians' and 'Africans'- has become a habit of thought and experience, a facet of popular common sense still widely in evidence.'As a result of this, Posel argues, it remains the nori to designate social actors in terms of their race in public nedia and in conversation. Accordingly, there is a tendency to think of race as an essence, as something fixed, concrete and objective (Deborah Posel'What's in a name?: Racial categorisation under apartheid and their afterlife' (2001') 47 Transfoirna- tion 50). See aenerally James Donald & Ali Rattansi 'Introduction' in lames Donald & Ali Rattansi (eds) 'Race', Culture, and Difference (1992) 3; Sally Haslanger 'Gender and race: (What) are they? (What) do we want them to be?' (2000) 34 Nods 31 at 43; Margareth Shih, Courtney Bonans, Diana Sanchez & Courtney Peck 'The social construction of race: Biracial identity and vulnerability to stereotypes' (2007) 12 Coltural Diversity and Ethnic Minorty Psychology 125 at 125; P Gaskins Wihat are You? oices of lixed-Race Yong People (1999); DR Harris &JJ Siun 'Who is multiracial Assessing the complexity of lived race' (2002) 67 American Sociological Review 614: K K Prah 'Race and culture: Myth and reality' in N Duncan, P Gqola, M Hofneyr, T Shefer, F Malunga & M Mashige (eds) Discourses on Difjerence: Discourses oi Oppres- sion (2002); and P R Spickard 'The illogic of American racial categories' in M P P Root (ed) Racially Mixed People in America (1992) 12.