/ 20 January 1995

Some still more equal than others in new SA

As early as 1910 a South African court declared that all men were created equal. It’s a pity a clause in the Bill of rights dilutes that principle, argues David Beresford

There must be a particular satisfaction, if a slightly selfish one, in being right while in a minority. An instance particularly to be envied was the dissenting judgement delivered by John Marshall Harlan of the US Supreme Court in the famous case of Plessey v Ferguson, when he made the assertion that “our Constitution is colour blind and neither knows, nor tolerates classes among citizens”. That was in 1896.

In South Africa Justice Harlan’s counterpart is a Judge President of the Cape province, Mr Justice Gardiner. In 1934, sitting in the country’s highest jurisdiction as an Acting Judge of Appeal, he delivered a similar dissenting judgement in a case which is, unfortunately, little known outside the local legal profession.

The case of the Minister of Posts and Telegraphs v Rasool turned on the right of the Postmaster General to set up separate counters in post-offices, for “Europeans” and “non-Europeans”. The majority decision was led by Acting Chief Justice Stratford who avowed that the courts would never tolerate “absurd” divisions of the community, “as for example a classification depending on the colour of one’s hair”.

But, he added, a division based on differences of race, or language seemed to be “sensible” and “make for the convenience and comfort of the public as a whole.” Another among the majority, Mr Justice de Villiers, observed that it was no more unreasonable discrimination than it would be to set up separate counters for those with names beginning from A to M and N to Z.

Gardiner, on the other hand, observed that it was “a fundamental principle of our law that in the eyes of the law all men are equal”. The Postmaster’s action was transparently motivated by the objections of large numbers of Europeans to being brought into contact with non- Europeans. The relegation of a man to a “non-European” counter struck at his “dignitas” and amounted to humiliating treatment.

Citing precedents showing the unlawfulness of such discrimination Mr Justice Gardiner produced a case dating back to the foundation of South Africa, in 1910. It involved a town council which attempted to segregate bathing facilities in a local stream with a by-law stipulating: “The hole at the poplars is only to be used as a swimming place for Europeans; beneath the poplars for coloured people.”

No inequality existed in the segregated facilities. But a court had over-turned the conviction of a “native” for swimming in the hole at the poplars, finding the municipality “had no right to discriminate between Europeans and natives, and to make the character of the act depend on the colour of the person committing it.”

“This court is, of course not bound by these cases,” observed Gardiner, “but it is some satisfaction to me to know that the view I have taken is in accordance with what hitherto has been the trend of judicial opinion in South Africa.”

Stratford & Co. having reversed the trend, government went on — with a shameful degree of compliance from the South African judiciary — to enshrine racial discrimination in the formal system of apartheid.

Today, of course, apartheid is officially dead. And the South African judiciary is to enjoy something of a re- birth early in the New Year, with the opening of hearings by the new constitutional court.

Excitement among civil libertarians has been heightened by the imprimatur being placed on this event by the attendance of one of South Africa’s great lawyers. Sydney Kentridge, SC, QC, has agreed to return home from his self-imposed exile in Britain to sit in the place of Mr Justice Goldstone, who has leave of absence to help bring the genocidal maniacs of Rwanda and Yugoslavia to justice.

Sooner or later the Constitutional Court can be expected to turn to the question of discrimination. Because, after nearly a century, Harlan and Gardiner have still to be fully vindicated.

In America Harlan’s vision of a “colour blind” constitution has never been fully realised, thanks to liberal endorsement of affirmative action. Similarly in South Africa the new Bill of Rights, while embracing Gardiner’s assertion that all men are equal, allows some to be more equal than others — with a qualification that the principle of equality “shall not preclude measures designed to achieve the adequate protection and advancement of persons or groups or categories of persons disadvantaged by past discrimination”.

Which is a pity. Because it would have been fitting for the land which gave the world apartheid to finally give the lead in enunciating the undilutable principle that all men are equal; that categorisation by skin pigmentation is no less absurd than “a classification depending on the colour of one’s hair” and that everyone has the right to swim in the hole under the poplar trees.