Trump casts powerful spotlight on human rights failures in SA, but wrong about “Afrikaners" - IRR Legal

Donald Trump’s executive order terminating all aid and assistance to South Africa while promoting “the resettlement of Afrikaner refugees” should be credited insofar as it aims to defend the human rights of South Africans suffering abuse at the hands of the state, but is wrong to single out “Afrikaners” as the sole, or even main victims.

The executive order correctly identifies discriminatory and anti-property policies of the South African government as a threat to freedom and prosperity, though details must be added. For example:

• The Expropriation Act jeopardises South Africans of all races. Black South Africans are estimated to have the most land by value and so have the most to lose.
• Insofar as racial bias is a risk in “nil compensation” cases that are permitted on an open list of circumstances by the Expropriation Act, this risk cuts against all South Africans.
• Roughly half a million specifically black South Africans have just had their property rights eroded by the Community Property Association Amendment Act, denying their right to sell, lease, or mortgage their own land.
• South African race law has been used to discriminate overtly against people of all races. Evidence published by the Constitutional Court to show that black, coloured, Indian, and white people have all been blocked from promotion or hiring explicitly due to BEE will be shared with the US State Department.
• South African race law indirectly harms all South Africans. Both the Zondo Report, which identifies confusion resulting from badly crafted race laws, and an economic report from Harvard University, which identifies the second-order economic impact, find a public interest harm in race law against the population across racial lines.

However, given that President Trump’s executive order specifically identifies Afrikaners as beneficiaries, IRR Legal will write to the US State Department to seek clarification on:

• What is an Afrikaner?
• Why are Afrikaners singled out for special treatment?
• How will US state officials determine who counts as an Afrikaner?
• If a black South African has had his or her land expropriated for “nil compensation”, but does not self-identify as “Afrikaner”, and that person applies for refuge will they be denied benefits that are granted to Afrikaners?

These questions matter, as historically “Afrikaner” has variously referred to black, coloured, and white people, among others.

In contemporary South Africa the term “Afrikaner” is contested. Some race nationalist secessionists, for example, insist that only white people can count as “Afrikaners”. Some others consider the term to be essentially cultural, rather than ethnic, meaning anyone of any race could be an Afrikaner.

Notably, there are famous people widely considered “Afrikaner” who are not white.

However, the use of the term “ethnic” in the US order unfortunately suggests that the US might adopt the position that all Afrikaners are within a single race, namely white.

Without knowing what an “Afrikaner” is according to US officials it is impossible to know whether people enforcing the executive order will apply humiliating racial tests to determine refugee status.

All of this means that President Trump’s focusing on Afrikaners was ill-advised and is unenforceable. The US must explain why any South African who has been overtly, and unjustly, racially discriminated against should not be granted special refugee status unless they are identified as “Afrikaner” by US officials, even though most black, white, coloured and Indian South Africans do not self-identify as Afrikaner.

As one example, consider the case of Jennila Naidoo. She applied to be a police station commander and was the most eligible candidate. However, the state had a “nil” target for Indian females, and so she was blocked. She appealed in court and was told by the judge that if she wanted to, she could move to KZN, where there were more Indians.

If anyone should be granted special refugee status, why not Naidoo?

To illustrate the point that South Africans of all races have been victimised by legal discrimination, IRR Legal will send the US State Department a copy of an earlier Employment Equity Plan used by the Department of Correctional Services, as published in a minority judgment of the Constitutional Court [level refers to levels of seniority in the organisation]:

“Levels 3-5: At level 3 only Whites and Indians should be appointed.

At salary level 4 only 9 African Males, one African Female and one Coloured Male need to be appointed to balance representation of the workforce.

At level 5 only African Females, Whites and Indians can be appointed.

Levels 6-8: At level 6 African Females, White Females and Indians should be appointed. At level 7 Africans (M 684; F 3 039) 331 Coloured Females and 103 Indian Females should be appointed. At level 8 only Africans (157 m & 190 f) and 15 Indians.

Levels 9-12: At levels 9 & 10 only 51 African Males, 198 African Females and 2 Indian Females can be appointed. At level 11 & 12 only 109 African Females, 5 White Females and 9 Coloured Females can be appointed.

Levels 13-16: At level 13 African Males stand at 63 with a gap of -9 which indicates no African male should be appointed. 24 African Females, 4 Coloured Females and 1 Indian Female need to be appointed at this level. At level 14 only 3 African Females and 1 White Female needs to be appointed. At level 15 only 2 African Females and 1 African Male can be appointed.”

Media contact: Gabriel Crouse, IRR Legal Executive Director Tel: 082 510 0360 Email: gabriel@irrlegal.org.za

Media enquiries: Michael Morris Tel: 066 302 1968 Email: michael@irr.org.za