The grey line in-between the rainbow : (re)thinking and (re)talking critical race theory in post-apartheid legal and social discourse

• Published date: 01 January 2011
• Date: 01 January 2011
• DOI: 10.10520/EJC153210
• Pages: 177-201
• Author: Joel S.M. Modiri

The grey line in-between the rainbow:

(Re)thinking and (re)talking critical

race theory in post-apartheid legal and

social discourse

Joel SM Modiri

*

All I’m saying is that even if they tried, the constitutional

dispensation that they [the ANC] have negotiated for and have

accepted and are not testing is anti-Black.

1

[I]n a racially structured polity, the only people who can find it

psychologically possible to deny the centrality of race are those

who are racially privileged, for whom race is invisible precisely

because the world is structured around them.

2

Nothing will be reconciled in the time of reconciliation.

3

1Introduction

Being part of a historically white, Afrikaner, middle-class university, it is not difficult

to detect the deeply entrenched manifestations of institutional racism and the

systematic exclusion and demotion of black students and lecturers from campus

life.

4

I am haunted by the banality of racism and the absence of race-sensitive and

*

Researcher in the Department of Legal History, Comparative Law and Jurisprudence, Faculty of

Law, University of Pretoria. My thanks to friends who read earlier drafts of this paper and gave

valuable inputs: Petronell Kruger, Serena Kalbskopf, Alfred Moraka and Cara Furniss. A special

word of thanks is extended to Professor Christof Heyns for his comments and continued support and

to Professor Karin van Marle for her insight and encouragement.

1

Mngxitama ‘Blacks can’t be racist’ http://www.counter-racismnow.com/2010/09/black-s-cant-be-

racist-by-andile.html (accessed 2010-10-30). For printed version, see Mngxitama ‘Blacks can’t be

racist’ (2009) 3 New frank talk: Critical essays on the black condition 1.

2

Mills The racial contract (1997) 75.

3

Van der Walt ‘Psyche and sacrifice’ (2003) TSAR 651.

4

See Madlingozi ‘Confronting and dismantling institutional racism in the Faculty of Law, University

of Pretoria’ in Visser and Heyns (eds) Transformation and the Faculty of Law, University of Pretoria

(2007) 27. See: Jansen Knowledge in the blood: Confronting race and the apartheid past (2009).

(2011) 26 SAPL178

race-critical approaches to law and life in general. I am also vexed by a number

of questions concerning race and racialism in South Africa. Among them are: ‘can

blacks be racist?’, ‘why are people in denial of the central role “race” should play

in post-apartheid legal and social transformation?’ and ‘how can racism be

justified?’ In this article, I attempt to confront these questions without claiming to

have conclusive answers or facile solutions. My starting point is the decision of

the Faculty of Law at the University of Pretoria which, after much persuasion,

established an elective module on Critical Race and Gender Theory for fourth

year law students. I want to take issue with making the module an elective course

with the result being that only a few students who are already race-sensitive and

race-critical will register for the module thus defeating the rationale for the course.

I also do not agree with conflating difficult race questions with gender issues

which, although equally important, tend to lead students to focus on the less

controversial sex and gender debates and not on race as the course intends.

As a black, middle-class male, I cannot (nor do I pretend to) offer a ‘neutral’

evaluation of South Africa’s trajectory of race discrimination – from slavery, to

colonialism and imperialism, to apartheid and to modern power racism. My

contention is that it is precisely these supposedly ‘neutral’ and ‘objective’

responses to race that have resulted in the slow pace of transformation from a

society based on white domination and racial separation to a democracy based

on non-racialism, equality and dignity. It is also my contention that because the

apartheid regime’s subjugation of black people had material (economic)

consequences, a neutral approach to transformation – one that claims that black

people and white people are equal or that they are both victims of apartheid –

weakens the former’s claims to redress and reparations.

Although the main concern of this article is jurisprudential and aims to

highlight the relationship between law and our ‘race and colour lives’, the broader

concern is also political and societal. My argument is that what happens in society

on one level also reproduces itself in legal institutions and judicial processes on

another. For example, the systemic inequality (in terms of socio-economic status

and education) that already exists between a poor black factory worker from

Alexandra Township and a wealthy white business tycoon immediately implies

that should the two parties enter into litigation against one another, the latter will

be able to afford an expensive lawyer with an elite education and will be looked

upon favourably by the presiding officer while the former will have no other

recourse but legal aid from an underpaid and overworked attorney. This example

– like many other real-life circumstances of people – exposes the fallacies of

‘equality before the law’ and of ‘access to justice’.

In this article, I also want to follow up on Karin van Marle’s remark that

‘[c]ritical race perspectives acknowledge the subject positions by continually

displacing mainstream liberal approaches of the subject and critical or post-