Looking Backward, Looking Forward: Race, Corrective Measures and the South African Constitutional Court

Abstract

How should the law address the effects of past and continuing racial discrimination? On the one hand, the fact that the law contributes to the production of our lived reality, that the law helps to construct the individual subject, his or her identity, the knowledge that it is possible to have about the individual, the limits of our understanding of the place of the individual in society, the deployment of racial categories in law can contribute to the perpetuation of the very race-based hierarchy that is the cause of the “problem of race” in our society. On the other hand if racial categories are not deployed in legal discourse and in the legal provisions aimed at addressing the effects of past racial discrimination and the continued dominance of an ideology of white dominance, the law may well fail to address the effects of past racial discrimination and the ongoing problem of racism and racial oppression.

In this paper I contend that South Africa’s Constitutional Court – while not always alive to these dangers – has embraced a view that the South African Constitution is historical self-consciousness in order to assist it with its interpretation of the various provisions of the Constitution and to signal the contingent nature of its interpretation. I explore the manner in which the Constitutional Court has dealt with racially-based corrective measures against the background of the Court’s understanding of the South African apartheid past and the lingering effects and consequences of this apartheid past on the post-apartheid society. I argue that although the Court has not always demonstrated a sufficient degree of care when deploying racial categories and, hence, that its jurisprudence could be read as endorsing a rather essentialist view of race, its jurisprudence also gestures at the need for a contingent and critical approach to race when engaging with the problem of race-based corrective measures and its limits. I discuss the Constitutional Court’s jurisprudence on constitutionally permissible (or required) race-based corrective measures and point out that the way the Court deals with this question – most notably in the way it situates its jurisprudence within the context of a specific historical event (the transformation from an apartheid state to an egalitarian non-racial state) - opens up a space for a constructive engagement with legally mandated race-based corrective measures to avoid some of the pitfalls highlighted above.

Keywords: Race, affirmative action, equality, South African Constitutional Court