Of Funny Names and Ridiculous Legal Opinions

Socialists are incorrigible repeat-offenders.

Pierre de Vos is a self-appointed redeemer of progressive jurisprudence, sometimes also posing as a university professor and jurist. I may say that after 43 years of legal studies, legal practice, and writing legal articles, I am accustomed to much higher levels of legal reasoning. He again delivered a gem of his wisdom attacking "white privilege", wealth and private autonomy by lauding a judgement from the full bench of the KwaZulu-Natal Division of the High Court, Pietermaritzburg.

First of all, I will not comment on the judgment. As a jurist I never – unlike De Vos – comment on a judgment that I was not able to read in full with all supporting documentation. That should go without saying among jurists, but with De Vos I am not so sure.

I only comment on De Vos’ comments which are lamentably shallow and small-minded. In Viennese vernacular we call that kind of behaviour “wadlbeisserisch” (biting on the calf like a little yapping dog). Fast-forward to some eminent gems of De Vos' reasoning:

“The judgment provides a timely reminder that no person or body (including a body corporate) can contract themselves out of constitutional or other legal obligations.”

Of course you may. Students of civil law learn this right in the beginning.

As long as the provisions are not mandatory like some provisions in labour law (Post Office v Mampeule (2009) 30 ILJ 664) or consumer protection law, parties may within the framework of private autonomy agree on their own rules and choose the applicable law (for example, CSA 250/09). What a constitutional obligation is remains unclear. Of course, I cannot agree with someone else to forfeit his political rights – that being evidently contra morem bonum – but everyone able to act and conclude contracts may do so or not do so according to his own taste and will and resolution. There is a theory that fundamental rights possess a “horizontal effect”, meaning that the rights apply between citizens and not merely between citizens and government. In light of the equality provision of the Constitution, this is taken to mean no ordinary person may discriminate based on listed grounds. But if that is true, private autonomy and freedom would be gone because then everyone would be answerable in his private gestations to government, inquiring why you concluded a contract with that guy and not with this lady, and so on and so on. Poppycock, that is!

"Attempts to privatise privilege by invoking the law of contract or property law speaks of a pre-constitutional mindset associated with a particularly toxic strand of liberalism".

The Bolshie lawmaker speaks. He can sell that theory to Senor Maduro of Venezuela.

First, the term ‘privilege’ is – surprise, surprise – a legal term meaning possessing a right not everyone possesses. We all are privileged as every one of us possesses specific rights, from rights out of the Constitution – as a permanent resident with a foreign citizenship I am not entitled to vote here and that is alright with me – to rights out of  specific fields of law up to rights out of contracts and the agreements we conclude.

But I suppose De Vos uses this legal term in a sociological or economic sense. But then he should say so. And if he sees material wealth as privilege, everyone is free to protect this ‘privilege’ and if one likes to live in a golf estate – I don’t – he is free to do so and use his good money to gain access there. That is neither my nor De Vos' business. The only toxic ideology I know is socialism in all its forms under which name whatever it creeps along.

“In terms of this view, the wealthy and socially privileged can largely opt out of ordinary legal obligations and the non-discrimination provisions of the Constitution.”

Everyone may opt out of non-mandatory legal provisions. Insofar section 8(2) of the Constitution obliges a private person to explain to any authority why he concludes a contract with a certain person and not another, must be explained to me.

Section 9(4) forbids (private) persons from unfairly discriminating against anyone. Now, it is time to combat the abuse of the word 'discrimination'. It derives from the Latin word “discrimen, discriminis” which means difference. Of course, we all differentiate every day and have to answer to nobody for that. That is personal liberty and private autonomy. Of course, it is anathema for a Bolshie jurist.

What most people mean if they speak about discrimination is putting someone at a disadvantage. That is something very different from differentiation. If a restaurant owner excludes a patron whose family name starts with an “S” – as it is with my name – it is all right with me, he may have that right to discriminate. Of course, the cited clause can be interpreted progressively and in an activist way – God beware – or in a conservative way. I prefer the conservative view as jurists should be from the very nature of their profession conservative, meaning careful and circumspect.

“I like reading court judgments dealing with quarrels between neighbours or family members”.

I don’t. You have to have a taste for the gutter to like it.

“I cannot help but wonder how many of the owners of houses in the estate are called Spencer, or Grant-Smith, or perhaps (my imagination conjuring up the most caricaturist colonial-sounding English surname) Rees-Mogg.”

So De Vos likes to play the boere gutter boy, making fun of Engelse names. So be it. In Austria we have family names with a German, a Slavic, a Hungarian, or a Romanic origin and we learned as children not to poke fun at ‘foreign’ names, “Tschurtschenthaler”  (pronounced Tschooorrrtntholler) being a classic Tyrolean name who De Vos surely will find funny. So be it. Everyone to his taste, everyone to his abilities.

Now the case is about the relationship between servants and this country club estate. Let us face a disturbing fact: There are people around who cannot afford to employ servants and under whose ancestors – if they have any at all – no one employed servants or even had been servants, serfs or people of such kind. Therefore, they lack the sometimes-inherited ability to treat servants properly. Maybe De Vos’ and my domestic helpers can meet and exchange experiences about how they are treated and paid. The result of that chat would be interesting.

“If the houses were not so large, it would have been possible to imagine that the fence was intended to keep prisoners inside – instead of intruders out.”

May I have a look at your house, Professor? Due to the poor state of public security and policing, we have to make use of security devices. That the state fails to provide all residents with adequate security hits the materially poor most, but De Vos does not criticise the state for its failings. Instead, he criticises private persons for their private security endeavours. That a Bolshie wants to have us 'bad, bad' wealthy people camped in is no surprise.

“And were those who approved of these rules (whoever they might be) aware that the rules said more about their own racism, their own ignorance, their own fear, and their own inhumanity, than it could ever say about the (surely exclusively) black domestic employees targeted by them?”

One of those bad obnoxious rules says that “Domestic Employees must make use of designated bus stop points throughout the Estate.” Providing servants with a bus service and asking them to use the designated stop points is incredibly racist, isn’t it?

“Seegobin J (Chetty J and Bezuidenhout J concurring) notes in his judgment, in terms of the National Road Traffic Act the roads in the Mount Edgecombe Country Club Estate are “public roads” subject to the same rules as any other public road."

Well, according to Austrian law private roads are all roads not property of government but the property of private persons. If the public has no access to those roads (as the road is boomed or a sign says “no driving except neighbours only", the Road Traffic Ordinance does not apply.

In my humble opinion, I have no explanation why that should be different in South Africa.

Private persons with their private money build a road for themselves on their private property. Of course they make the rules. Everything else is socialism.

“But the most egregious aspect of the case relates to the attempt by the management association to impose apartheid -era rules restricting the movement of “domestic employees”. These rules – quoted above – demonstrate, in ways surely not intended by its drafters, the perversity of part of South African society.”

They provide buses for them. Awfully bad, isn’t it?

That maybe most of the residents are ‘white’ and most servants are 'black' is no concern for me. They have jobs, opposed to about 50 percent of South Africa's young people and about 30 percent of the whole work force.

That the club provides rules for non-members like visitors and servants is fine with me. Rules are rules. And we all divide people in two groups, for example, people who do that and people who don’t. People who are clubable and people who are not (although I believe that my very decent domestic helper is far more clubable than Professor De Vos). And such a country estate is far too boring for me to live there. But if someone is a resident there the residents make the rules. And I do not see any unfair discrimination if asked to use the designated bus stops.