We talk a lot about the fast media cycle in the age of information, but more concerning is the fast “knowledge” cycle: things people knew to be true just a year ago suddenly disappear from consciousness and become myths or “disinformation.” Where is this more evident than in the repeated statements this week that South Africa’s racial minorities face no discrimination?
The Afrikaner families who travelled to the United States this week as refugees (with “refugees” being indicated in scare quotes by all major South African press media), like all racial minorities, faced policy and legislative discrimination on the basis of their ethnicity with little judicial recourse.
This is not a general political rumination, but something found in the text of at least 117 post-1994 Acts of Parliament, and in the jurisprudence of the Constitutional Court spanning decades.
The political record
Nowhere is it more in-your-face than in the political statements (too often pooh-poohed) made by some of the country’s most powerful politicians.
As recently as this past Monday, the empty suit that occupies the Presidency explained how graceful the supposed racial majority has been in allowing the “colonisers” to “stay” in South Africa. This is the same President who refused outright – joined by the courts – to condemn very well-documented calls by the Economic Freedom Fighters (EFF)’s Julius Malema for wholesale race-based slaughter of whites in general and Afrikaners in particular.
In 2018, the EFF’s Floyd Shivambu objected to the presence of a “non-African Treasury official” – an Indian South African – at a parliamentary meeting.
His leader, the always-genocidal Malema came to Shivambu’s defence, saying most Indians – another racial minority – are racist. Why? Because Indians were “less oppressed” during Apartheid.
Ethnicity is not simply incidental here – Malema has never called for generalised violence or discrimination against the members of his own racial group. That he is calling – with indifference from authorities – for violence and differentiation against racial minorities in particular is key to appreciate.
When the Democratic Alliance (DA) innocuously celebrated the heroism of ordinary communities – non-racially representing all race groups – defending themselves during the 2021 riots, the state and political elite turned this into a race debate. They claimed that it was a co-ordinated attack by minorities – primarily Indians, again – on the black majority, requiring punishment.
This year, a white DA councillor in the Johannesburg Municipal Council, Daniel Schay, was told by a committee chairperson that he “should take up the offer Donald Trump has made,” because Schay committed the grave crime of speaking up as a Jewish South African with white skin, which made his loyalty suspect.
Make no mistake, the melanin content in Schay’s skin played the decisive role in this exchange.
And while many want to paint such interactions as “fringe,” that is unfortunately a coping mechanism rather than a statement of reality.
South Africa’s legislative chambers are hotbeds of racial animus and demagoguery, usually led by the party that has dominated South Africa’s political system for 31 years: the African National Congress (ANC).
The ANC now laughably wants to claim, in the wake of the first Afrikaner refugees leaving for the United States, that nobody in South Africa is the target of “ethnic victimisation.” It has also, bizarrely, rediscovered the constitutional value of non-racialism.
Obviously, this unifying and vibey messaging by the ANC is meant largely for international consumption (Channel 2 in Dr James Myburgh’s assessment), whereas on Channel 1 non-racialism is dismissed as a privilege-protecting mechanism that must be tossed aside in the pursuit of social justice.
Added to this, Afrikaners’ whole heritage is being systematically delegitimised.
Monuments, like that of Paul Kruger in Church Square, are constantly vandalised.
Whereas Zulu children are told to venerate and revere their ancestral warrior-kings, Afrikaner children are told that their ancestors were the perfect embodiment of pure evil.
But it is not only Afrikaners.
Cecil Rhodes, a key figure in (largely) white English South African history, had his statue removed from the university campus that stands on land he bequeathed.
Street and placenames associated with the history of Afrikaners and Anglo-South Africans are continually and unceremoniously changed without even a hint of seeking consent from those communities.
This is not mere social pressure – it is state-sanctioned and state-driven.
Vandalism by the EFF at the Afrikaner cultural community Kleinfontein in Tshwane was not met with active state protection of property and freedom of association. Instead, ActionSA, in government in Tshwane, put out a press statement condemning the very existence of places like Kleinfontein and Orania without a mention of the thousands of cultural towns and villages that exist for the racial majority all across the country.
That Afrikaners in particular – not on the grounds of wrongdoing, but blood debt – are to be second-class citizens, is not merely reflected in impassioned political statements, but is also a matter of legislative and judicial record.
The legislative record
There are multiple race laws that operate specifically against racial minorities. Most of these, in a raw quantitative sense, are more or less harmless against the racial minorities in question, but harmful against South Africa in a general.
The fact that a global nuclear expert – who happens to be coloured – is not appointed to a ministerial advisory committee on nuclear energy due to “representivity” considerations is not much skin off of his back, though it does handicap the country’s development.
But a handful of these laws – in particular the Employment Equity Act and the Broad-Based Black Economic Empowerment Act, and the slew of professional legislation (like the Property Practitioners Act and others) that are premised on the logic of the B-BBEE Act – target and significantly injure the economic prospects of white individuals for no reason other than melanin content.
As recently as September 2022, Dis-Chem CEO Ivan Saltzman announced that his company had to place a moratorium “on the appointment of white individuals” as well as the promotion of already employed white individuals, in fear that the state would punish Dis-Chem with existentially destructive fines.
This was all but formalised with the recently adopted Employment Equity Amendment Act and regulations in terms of it. Companies that hire (the injustice!) too many whites, or promote (what horror!) too many whites, will be all but destroyed by the government.
Added to that, multiple politicians, including the President, Deputy President, and Minister of International Relations have in recent months made it clear that the Expropriation Act and similar laws will be utilised in particular to target property owned by racial minorities, despite the absence of a clearly racial provision in this Act.
The linguistic autonomy of Afrikaners and Afrikaans speakers has also (explicitly!) come under fire recently in the form of the Basic Education Laws Amendment Act.
The judicial record
There is a heading appearing in the 2004 Constitutional Court judgment of Minister of Finance v Van Heerden:
“Jammergevalle”
This is one of those Afrikaans terms that does not have a direct, contextual English translation, but I have found the best equivalent to be: tough shit, sorry guys, not sorry!
By this, the Court meant those instances of “hard cases” whereby, on its face, state-sanctioned racial discrimination is clearly unfair according to the Constitution. But, but to recognise them as such (in the words of Justice Mokgoro) “would place a burden on government that would unduly impede its ability to transform our society.” As a result, the Court sweeps up these peripheral cases of race-based discrimination into the “bigger” fairness of the government programme in question.
Van Heerden is also the judgment that, in practice, closed the door for people claiming they are being racially discriminated against by the state from relying on the test for “fair” versus “unfair” discrimination, or testing that discrimination against the limitations provision in section 36(1) of the Constitution. No, the Court said: if the policy is intended to redress past injustice, the inquiry stops there – there will be no test for fairness or justifiability.
Or, to take another 2004 judgment, Bato Star v Minister of Environmental Affairs, wherein Justice Ngcobo said:
“The measures that bring about transformation will inevitably affect some members of the society adversely, particularly those coming from the previously advantaged communities. It may well be that other considerations may have to yield in favour of achieving the goal we fashioned for ourselves in the Constitution.”
This is indistinguishable from the logic adopted by the Appellate Division during Apartheid, like in the 1961 case of Minister of the Interior v Lockhat, that essentially recognised the undue hardships that would befall people who are racially discriminated against by the state, but that they are acceptable sacrifices in the grand scheme of the state’s racial engineering.
Many cases besides Van Heerden and Bato Star, in particular the 2014 judgment of SAPS v Barnard, reaffirm the essential aspects of this approach by our courts in South Africa’s supposed modern non-racial constitutional democracy.
This approach takes a core design feature of constitutionalism – the protection of legal subjects against the political agendas of the state – and subjects it to a wholly majoritarian principle.
In practice, constitutions that only serve to protect the politically powerful majority against powerless minorities are not worth the paper that they are written on. And while the South African Constitution is clearly written to be a normal, effective, pro-liberty constitution, the courts have done much work to ensure racial minorities cannot benefit from that protection too much.
In this, latter respect, then Chief Justice Mogoeng was clear in the 2016 Tshwane v AfriForum judgment when he said that Afrikaners may not utilise the Constitution “to facilitate the frustration of real justice and equity” and that the Constitution is not there for minorities to be used as “a selectively recognised weapon, conveniently produced and used by some of us only when it could help advance illegitimate sectarian interests through legal stratagems.”
“They’re not suffering!”
The most common criticism of the Afrikaner refugee programme has been that they are not “suffering” and therefore cannot be refugees.
Leave aside for a moment that anyone who has applied for refugee status and has been approved, is per definition a refugee (“refugee” is a concept that only exists in law), clearly this criticism has historical problems.
Jews have been repressed wherever they went throughout history but have nonetheless managed to excel and build real wealth for themselves, which in turn generated further hostility that led to pogroms, expulsions, and worse.
The successful Chinese minority in Malaysa has been subject not merely to anti-Chinese protests but also to targeted state policy.
The thriving professional and entrepreneurial Armenian minority in the Ottoman Empire was an easily identifiable group that was subject, ultimately, to genocide.
The rapidly Westernising and upskilling black South Africans around the turn of the previous century also posed a visible threat to the interests of white workers, providing some of the implicit basis of the segregationist and Apartheid laws that were to follow. Walter Williams documents this development in his South Africa’s War Against Capitalism.
Political exclusion almost always generates (by necessity) a measure of self-reliance and thus success. This was no less true for black entrepreneurs during Apartheid than it is for Afrikaners under transformania. And this success generates visibility and resentment.
This is not a new phenomenon but pretending that it is not happening to racial minorities in South Africa today is pointless at best and malicious at worst.
That whites are not “suffering” in South Africa also has significantly less to do with the desires of benign politicians, and more to do with the methods the former have employed to adapt to the harmful policies they and their businesses face.
The state’s incapacity – and long may it continue! – to see its totalitarian transformania agenda through to fruition cannot alone undo the basic truth that victimisation is a matter of clear and unambiguous state policy.
This is to say that white South Africans are not the “greatest sufferers” in South Africa (which would be a pretty stupid test for refugee status) – and nobody has claimed otherwise – but they are the group facing the greatest degree of direct ethnic hostility from the state.
Persecution
Poverty cannot be a criterion for victimisation. It is precisely Afrikaners’ success and wealth that has made them ready targets for political, legislative, and judicial persecution.
Indeed, persecution is defined by Merriam-Webster as harassment or punishment in a manner designed to “injure, grieve, or afflict.”
The European Union (EU) defines it as such:
“Serious human rights violations, including a threat to life or freedom, as well as other kinds of serious harm, on account of race, religion, nationality, political opinion or membership of a particular social group.”
The EU goes on to explain that there is no universal definition of persecution, specifically because international law thinkers wanted to keep the concept flexible enough to “encompass ever-changing forms of persecution,” and that “lesser forms of harm may cumulatively amount to persecution.”
That Afrikaners in particular (and racial minorities in general) fit this conceptualisation of persecution comfortably is, frankly, beyond dispute. In fact, the harassment is incessant, the punishment is codified, and the threat to freedom on the basis of race is all too clear.
Frustratingly, until recently everyone in South Africa agreed about this evident reality. Now, suddenly, there is said to be no legislated discrimination in the country.
Right up until the moment Donald Trump’s name appeared in the discourse, there was no meaningful contention. Racial minorities were targeted – and rightly so, said the political elite – to ostensibly bring about justice and redress. Now we are being gaslit into the false notion that none of this has been happening.
Some liberals and libertarians have even fallen into this trap, desperate to remain part of “polite company,” and refuse to perceive the legislative, judicial, and political record for what it is.
Free movement
Of course, none of what I have written today addresses the great injustices primarily experienced by black South Africans – though not as a result of direct political targeting on the basis of their melanin content.
Nor have I engaged with whether Trump’s refugee policy is simply political manoeuvring. Maybe it is.
I have long and continue to favour a so-called “open borders” approach to the movement of free people. Peaceful people, whether Afrikaners, Zulus, Afghans, Palestinians, Swedes, Nebraskans, etc., if they desire fleeing from something for whatever reason, must not be stopped from doing so. Standing in the way of peaceful people fleeing is unjust per se.
Alex Nowrasteh of the libertarian Cato Institute has, in my view, provided the most sensible perspective from the American side: though Trump’s immigration policy might be highly questionable on various grounds, Afrikaners do face state discrimination in South Africa and clearly should have an easy path to settlement in the United States. As, of course, should all other South Africans, but you clearly can’t have it all when dealing with statists.
It is incumbent on non-racialists, liberals, libertarians, and decent people generally, to not suspend their rational faculties just because a disfavoured group like Afrikaners are the subject of consideration. These groups have always loudly objected to state repression – whatever the supposed severity – on the basis of race, and this should be no exception.
That Afrikaners and other racial minorities face persecution in South Africa is too clear to reasonably deny.
The views of the writers are not necessarily the views of the Daily Friend or the IRR.
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