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McKaiser needs to challenge his inner racist too

COMMENT

Towards the end of his essay “How to challenge your inner racist” (Mail & Guardian September 9) Eusebius McKaiser brings up the issue of intention. This is an honourable move — most progressives eschew this aspect altogether — but his actual analysis is hopelessly inadequate. His Djokovic analogy is plainly wrong; and by failing to define the term “racist” with any kind of precision, he makes it nigh impossible for anyone to know what’s allowed and what’s not. Which may, awkwardly, be just the point of the exercise. 

McKaiser went to law school, so he’ll know the difference between culpa and dolus; between bad acts that involve “mere” negligence and those that are done intentionally. In the case of the latter, our law distinguishes three separate kinds, the most stretched of which (so-called dolus eventualis) is the one that cost Novak Djokovic his place in the US Open. At the moment he angrily hit the ball, he must have realised, subjectively, that he might strike a line judge — and the fact that he went ahead regardless was enough to satisfy the relevant legal test. 

Here’s the point though. Even if he hadn’t foreseen the possibility of harm, Djokovic would nevertheless have been guilty of negligence, akin to a driver who bashes into the back of another car. Such cases are always justiciable; the aggrieved driver is entitled to the same relief as s/he could claim if the bumper-bashing was deliberate  —  and a criminal prosecution is also competent. Negligence carries a cost (if it results in damage), but there are two qualifications that are relevant here. 

Firstly, it has to be shown that the action was indeed wrong (or reus, as lawyers say). And secondly, the adjudicator has to consider the issue of severity. The punishments for murder (dolus) are way harsher than those for culpable homicide. 

This is perhaps a bit ungenerous  —  I’ve never met McKaiser  —  but my sense of him from his public-facing persona is that he is not much inclined to dwell on this distinction. By focusing exclusively on the hurt felt or offence taken by the person calling out the act, anti-racism advocates are spared the bother of having to interrogate the intentions (or indeed the motives) of the deemed villains. 

Racism is a scourge worth fighting, to be sure, but it’s also true, unfortunately, that righteous indignation is a highly addictive emotion. Having a real-life hate object is hugely important for all unenlightened beings  —  and especially so for professional nirvanaists, resentment peddlers and misery-mongers. 

The Clicks case is instructive in this regard, in various ways.

Firstly, and again the lawyer in McKaiser should have known better, one needs to be circumspect in attributing an intention to a non-natural person such as a corporation. It’s okay to talk about “the racist Clicks advert”, but to refer to “the racism of Clicks” is plainly problematic. Certainly on the basis of a single advertisement that was authored by an outsider, immediately withdrawn and strenuously repudiated. 

Some organisations are demonstrably racist, as evidenced by their stated objectives, their actual conduct or the utterances of their senior executives. It’s also true that corporations can, in theory, be tried for all kinds of crimes, including murder  —  but, again, the watchword must surely be careful consideration. We shouldn’t be surprised by the cynical and hyperbolic reaction of the Economic Freedom Fighters, but given the stakes involved, we can surely expect better from intellectuals such as McKaiser and from heads of chapter nine institutions such as the Human Rights Commission. 

Being branded as racist in South Africa today is a gravely serious matter, whatever one’s identity or status. In the case of Clicks the slur has already cost it a lot in terms of damage to stores and foregone revenues, but there is also the likelihood of lay-offs, share-price attrition and even, possibly, violence against senior executives.

Most of this would be understandable if this were a case where a conscious decision had been made by someone who was authorised to speak for the company as such (like the chief executive, or a director). It would then be fair to talk of something like dolus  —  but by all appearances though, the worst that could be said of Clicks was that a few mid- to junior level staffers were guilty of culpa. The fact, if it be such, that most of those involved were themselves not white is a further factor militating against the idea of a damning public roast. 

With the benefit of a darker complexion than mine, and a stronger set of convictions (or prejudices), McKaiser will most likely fob off these challenges as reactionary, or even racist. I’m hoping though, against hope, that he will find a way to take a more generous view and in so doing honour the title of his essay. That he will prioritise accuracy and healing over loyalty and loathing, thereby “challenging his (own) inner racist”.

The views expressed are those of the author and do not reflect the official policy or position of the Mail & Guardian.

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Glen Heneck
Glen Heneck has an LLB from the University of Cape Town and an LLM from Cambridge. He works as group legal counsel for a Cape Town trading company

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