I should like to take this opportunity, at the outset, to congratulate the Cape Town Club on its 150th anniversary. The Club – and its predecessors the City Club, the Civil Service Club and the Here XVII Club – have been important institutions in Cape Town since colonial times. Many of Cape Town’s most distinguished citizens have been members of the Club and its predecessors. Many issues that have affected the course of our history have been discussed and decided over port and cigars in their lounges and dining rooms. This rich heritage is evident in the Club today – with its bust of Queen Victoria; photos of visiting British warships and portraits of former leaders – including portraits of our four Nobel Peace Laureates.

Peter Soal was surprised when I indicated that the topic for my speech tonight would be ‘the Club’. This was possibly so because institutions like clubs seem a little detached from the hurly-burly of modern life and perhaps a little irrelevant to the current debate in South Africa. Surely, there were other topics of greater interest in our highly politicised society?

On the contrary. In my view Clubs and the civil society sector of which they are part are extremely relevant to our current national debate. In particular, they are at the core of three seminal constitutional questions:

• firstly, the question of diversity encompassing our right to practise the cultures of our choice;
• secondly, our right to freedom of association on the one hand and the constitutional prohibition of discrimination on the other; and
• thirdly, the boundaries between the legitimate activities of the State on the one hand and those of private citizens and institutions on the other.

These are by no means academic questions. They lie at the heart of highly contentious issues such as the recent reprehensible incident at the University of the Free State; the decisions of the Black Journalists Forum to exclude whites from Mr Zuma’s recent press conference; and the squabble between Norman Arendse and Mickey Arthur on the composition of the national cricket team. In short, they go to the heart of the debate on who we are as a nation and who we would like to be.

There are a number of opposing views on how South Africa should deal with questions of diversity and national unity.
The ANC has a somewhat contradictory approach to cultural diversity. On the one hand “it recognises that individuals….will have multiple identities, on the basis of their physiological make-up, cultural life and social upbringing and that “such distinctive features will not disappear in the melting-pot of broad South Africanism”.
On the other hand it questions the popular imagery of a “rainbow nation” because such a view fails “to recognise the healthy osmosis among the various cultures and other attributes in the process towards the emergence of a new African nation”. It emphasizes that “the main thrust of the National Democratic Revolution is not to promote fractured identities, but to encourage the emergence of a common South African identity”. It warns that some identities associated with “multculturculture” or “ethnicity” or “religion” might in fact be contradictory to the building of a new nation that is based on principles of equity.” It asks, in considering “the identity of the South African nation in the making”…“whether it should truly be an African nation on the African continent, or a clone, for example, of the US and UK…. The ANC concludes that “what is required is a continuing battle to assert African hegemony in the context of a multi-cultural and non-racial society.”
This ambivalence to the management of diversity may explain why so little has been done to promote multiculturalism since 1994 – despite the clear requirements of the Constitution. As I pointed out at our Conference on Unity in Diversity two weeks ago:
• English has become the de facto single official language of the national government – despite the requirement that it must use two official languages;
• our ten official indigenous languages clearly do not, in practice, enjoy parity of esteem with English and are not treated equitably;
• in practice, few provinces fully respect the requirement that they must use two official languages;
• very little is being done to develop indigenous languages – especially black indigenous languages;
• recommendations have been made for the dissolution of Pan South African Language Board and the Commission for the Protection of Cultural, Religious and Linguistic Minorities;
• the state is not properly respecting the right to mother tongue education – particularly for children who speak black African languages. Few receive mother tongue education beyond Grade 3 – often to the irreparable detriment of their subsequent education prospects;
• many Afrikaans single-medium schools – and traditional Afrikaans universities – are under enormous pressure to introduce and expand English parallel tuition with serious implications for their long-term viability.
None of this accords with the growing international consensus on the management of diversity – as expressed by the United Nations Development Programme in its 2004 Human Development Report. It stated that “people’s cultural identities must be recognised and accommodated by the state, and people must be free to express these identities without being discriminated against in other aspects of their lives. In short: cultural liberty is a human right and an important aspect of human development – and thus worthy of state action and attention.”
It called for “multicultural policies that recognise differences, champion diversity and promote cultural freedoms, so that all people can choose to speak their language, practice their religion and participate in shaping their culture – so that all people can choose to be who they are.
Experience has shown time and time again throughout the world that harmonious coexistence in multicultural societies requires the acceptance and accommodation of diversity. It is also essential that communities should have a right to associate freely in the pursuit of their legitimate cultural, educational and commercial interests. It means that in diverse societies people should be able to establish and maintain companies, schools, universities, clubs, cultural and religious organisations that are broadly representative of their various constituencies rather than of the population as a whole – provided that they do not unfairly discriminate against anyone from any other community.

Our Constitution is in alignment with this developing international consensus.

It recognises our diversity of language, culture and religion. It protects the right to freedom of association as well as the right of persons belonging to cultural, religious or linguistic communities to enjoy their culture, practise their religion and to use their language. It confirms their right to form, join and maintain cultural, religious and linguistic associations and other organs of civil society.

This is the constitutional basis for civil society organisations like this Club – and it is also claimed as the justification for organisations like the Black Journalists Forum.

We have a right to free association and diversity but it is a right that may not be exercised in a manner inconsistent with any other provision of the Bill of Rights – and particularly with the provision that prohibits unfair discrimination.

Our Courts have shown that they support diversity in our society. In a matter before the Constitutional Court two years ago affecting the Lesbian and Gay Rights Project, Justice Albie Sachs pointed to the existence of a number of constitutional provisions that “underline the value of acknowledging diversity and pluralism and give a particular texture to the broadly phrased right to freedom of association”. “Taken together they affirm the right of people to self-expression without being forced to subordinate themselves to the cultural and religious norms of others, and highlight the right of individuals and communities being able to enjoy what has been called the ‘right to be different’.”

However, they do not allow anyone – or any institution – to discriminate unfairly against anyone else. Thus, the Courts would probably uphold the right of black journalists to form their own exclusive forum as part of their expression of their own distinctive culture. However, they would less inclined to sanction the holding of press conferences by the Black Journalists Forum that exclude other journalists on the basis of their race, since such discrimination would unfairly prevent those involved from doing their jobs. For the same reason, it is unfair discrimination if black students are barred from public hostels at the University of the Free State. The recent activities of students at the Reitz hostel at the University of the Free State were reprehensible and completely unacceptable.

In addition to questions of diversity and freedom of association we also need to examine the acceptable boundaries between the State and civil society.

In general, the ANC’s views on how non-racialism should be pursued are governed by the precepts of its National Democratic Revolution and the attainment of its goal of establishing a “non-racial democracy”. This is defined as a society in which all “centres of power and influence and other spheres of social endeavour become broadly representative of the country’s demographics.”

‘Representivity’ is the central and guiding theme in the Government’s transformation ideology. The idea is that in a perfectly non-racial society all institutions in the public and private sectors should reflect the ethnic composition of society at all levels. Accordingly, the owners, the directors, the managers and the employees of all companies and organisations should ideally be 79% black, 9% white, 9% coloured and 2% Indian. The same should hold true for all aspects of government and all state, provincial and municipal institutions – and ultimately for all sports teams as well. The Government does not have any illusions that it will be able to achieve representivity overnight but believes that this is the direction in which society should be moving.

At first glance this would seem to be fair and reasonable. In a non-racial society individuals from minorities would theoretically still have an equal and proportional chance of achieving success in representative institutions. However, this is not the way societies function in practice. In New York, Korean immigrants own corner stores – and Hassidic Jews dominate the retail trade in Canal street.. Black Americans show a clear proclivity to track and field events and basketball; while white Americans provide most of the swimmers – but can one imagine the outcry if anyone ever attempted to impose racial quotas on such sports in the USA?.

We should have learned from the past that we cannot force the realities of our complex society into rigid ideological moulds – however well-intentioned the motives might be. The Constitution rightly calls for the Government to move toward demographic representivity in the public service, the security forces and the judiciary. However, even this requirement is predicated on the continuing provision of effective services and the prohibition of unfair discrimination. The Constitution does not require demographic representivity in other sectors of society – although it rightly prohibits unfair discrimination.

The fixation with representivity ideology is also beginning to cause serious distortions:

• The precipitate replacement of trained and experienced personnel in the public service, municipalities and parastatals in pursuit of racial employment targets has been a major factor in the decline in service delivery at all levels of government. Some state departments refuse to make critically needed appointments simply because there are no suitably qualified black candidates.
• The private sector experiences similar difficulties with the application of representivity-driven affirmative action: how can companies meet targets for demographic representivity in the appointment of accountants if only 10% of the available pool are black?
• The ideological application of representivity also results in absurdities in the NGO sector. NAWONGO is a confederation of predominantly white church-based non-governmental organisations in the welfare sector. Together they provide most of the social welfare services in the country and raise almost R 900 million rand each year to support their activities. However, because they are dependent on state subsidies for a quarter to a third of their total running costs they have been informed by the authorities that their boards and organisations must be demographically representative. But how – with the best will in the world – can the Afrikaans Christian Women’s Union – become representative of the population as a whole? And yet, the main beneficiaries of NAWONGO’s services are previously disadvantaged communities.
• The requirement for representivity is also at the root of ongoing tensions regarding the composition of national teams. Last year, Mr Khaya Majeke, the SASCOC manager for the preparation of our Olympic team, warned that sports codes that do not have at least a 50-50 “Black-White ratio” of participants might not be allowed to send teams to the Beijing Olympics in 2008. At the same time, Mr Butana Komphela, the controversial chairperson of the Parliamentary Sports Portfolio Committee, said that the government would take action under the new sports legislation to punish any federation that moved in the wrong direction. He was referring to the new National Sport and Recreation Amendment Act, 2007, which gives the Minister of Sport powers to issue binding directives to private actors in sport regarding transformation of sport along racial lines. Such interference in the activities of civil society is unacceptable not only in terms of our Constitution – but also in terms of most international sporting codes.
It is in clear contravention of the International Olympic Committee principles that require that “the organisation, administration and management of sport must be controlled by independent sports organisations” and that prohibit “any form of discrimination with regard to a country or a person on grounds of race, religion, politics or gender.”

Nobody in his right mind questions the need for sustainable transformation and balanced affirmative action in areas of justifiable national interest. However, to my mind, the guide-line should not be demographic representivity but proportionality.

Employers should ensure that if black South Africans comprise 30% of the pool of available expertise, they should make up 30% of all appointments. This approach should be coupled with energetic steps to increase as rapidly as possible the number of suitably qualified black candidates as well as the removal of all conscious and unconscious barriers to their appointment and promotion. And, by definition, organisations with a cultural nature should be completely exempt from any requirement for demographic representivity.

One of South Africa’s greatest heritages is our rich diversity of languages, cultures and religions. It is this rich diversity that makes us a rainbow nation. We can best build and consolidate this heritage if we accept the following principles:

• We must promote and celebrate our cultural, linguistic and religious diversity’;
• We must accept that no culture or identity should be able to claim superiority or hegemony over any other;
• There are important areas of national life that should be free from state interference and intrusion;
• We must treat people from other communities with respect , consideration and courtesy and should avoid unfair discrimination in all our dealings;
• We must build a new over-arching national unity based on the principles and values in our constitution;

This means that the identity and culture represented by this Club are as valid and as much part of the composite identity of South Africa as those of any community; any culture and any race. For the past hundred and fifty years the Cape Town Club and its predecessors have cherished and maintained their special identities and have added to the rich texture of our national diversity. I should like to congratulate you once again on this important milestone and should like to wish you well for the next one hundred and fifty years. Your future survival should depend on your ability to maintain the active support and participation of the community that you serve – and not on the approval of the state. And that it is as it should be.