7. The Unfortunately Named . . . (2009)
We left Canada’s late summer light 36 hours before and were now descending into the bright spring sunshine of the sprawling city of Johannesburg. My expectations for my first foreign-based assignment were high. I was eager to tackle this new role: political counsellor reporting to Canada’s high commissioner (ambassador) to South Africa. My wife, Suzanne, and I were greeted in the modern airport lobby by the high commission’s first secretary, the smiling and affable Marc Labrom, who would be my indispensable deputy over the course of the next year. After being dropped briefly at our mission-owned house in Waterkloof Ridge, a suburb of South Africa’s administrative capital Pretoria, I decided to make an initial call at the office – the Canadian High Commission. (Canada’s embassies to Commonwealth countries are referred to as high commissions.) I arrived to learn that Dawie Jacobs, director of the Canada desk of the South African foreign ministry (DIRCO, Department of International Relations and Cooperation), wanted to speak to me urgently.
During our 30-minute drive from the Johannesburg airport to Pretoria, Marc had mentioned a story that had broken overnight concerning a white South African by the name of Brandon Huntley who had been granted refugee status by a Canadian Immigration and Refugee Board (IRB) judge. The favourable ruling was based on a claim of persecution of white South Africans by members of the black majority population. The story was in all major news outlets, giving Canada a suddenly higher profile than usual in what is the very active South African media.
So, the reason for Jacobs’s call was not to welcome me on arrival. The refugee board decision had impugned South Africa’s reputation as a world champion of racial equality. The fact that he wanted a meeting right away underlined the issue’s importance for the South African government.
Diplomacy has esoteric rules. High Commissioner Adele Dion had herself only just arrived in the country a couple of days before. She had not yet been received by the foreign office to officially present her credentials – which meant that she could not yet have formal meetings with the South African authorities. As newly appointed political counsellor, I was second-in-command by default, thus chargé d’affaires, and therefore the designated hitter pending Dion’s presentation of credentials. It was startling that on my very first day in a completely new assignment, I was being “called in” to receive what would inevitably be a scolding over Canada’s supposedly insulting behaviour.
The basis of Huntley’s claim was that white South Africans lived in danger of attack by black South Africans; that there was a prevailing climate of persecution based on racial hatred and bigotry; and that this alleged danger justified his claim for asylum as a political refugee. Huntley had arrived in Canada on a temporary work visa to work as a carney on the Canadian summer fairs circuit. But after two summers in Canada, he decided he no longer wanted to go back to his violence-prone homeland.
The reaction of the South African government to the Huntley case could not have come faster or been more indignant. In the government’s view, the post-apartheid “Rainbow Nation” was the antithesis of a racist state. In the South African government’s view, people of all races in South Africa live as equals, free from prejudice based on their skin colour. The principle was recognized in the South African constitution and was being adhered to in practice. Therefore, the decision of a Canadian judge had to be ill-founded and unacceptable.
The office where I was to meet Jacobs was only a few short blocks away. In late 2009, the South African foreign ministry was scattered in a variety of offices around the city. (It was shortly to move into a new and spectacular modern headquarters.) Marc and I left through the security gate of the high commission and walked through streets covered by the red dust that typically accumulates before the seasonal spring rains. We were met at the designated DIRCO office and brought to a conference room where we encountered a roomful of officials, led by South Africa’s State legal adviser, Sandea de Wet.
DIRCO had retained much of its experienced diplomatic talent following the transition to non-racial democracy, which meant, by force of circumstance, that most of my “accusers” were white. De Wet had extensive experience in international law. Jacobs had been among a group of white reformers in the late apartheid era.[1]
The official upbraiding began immediately, delivered in that impeccable diction perfected by both Afrikaner and English-speaking professionals in South Africa. That DIRCO’s top legal official was in charge of this meeting underlined the gravity with which South Africa considered the “white refugee” case.
The South African government was deeply offended, said de Wet, that Canada would have given any credibility to charges of racism against South Africa. The ruling was a “serious assault on the South African government’s integrity . . . We want there to be no misunderstanding of the seriousness of the matter.”
It was utterly false to suggest, she said, that South Africa was not devoted to racial equality. It is entrenched in the democratic constitution and practised every day in social and business settings throughout the country. There were absolutely no grounds for a finding of racial discrimination. The IRB’s findings were “untrue, untested, and unacceptable.” South Africa was appalled that Canada, so supportive of the historic struggle against apartheid, could now be responsible for casting such a false aspersion against its longstanding friend in the international arena. Canada’s relationship with South Africa was “solid and cordial”, and Canada should “set the record straight” without delay.
In the minutes before the meeting, Marc and I had discussed with headquarters in Ottawa the position I would take. “Thank you,” I said, “for bringing your concerns to our attention. Your position is clear. You have made it forcefully, and I understand it. Canadians recognize South Africa’s considerable achievements in building a tolerant, multi-racial society.”
As I spoke, I was acutely conscious of the irony that my chief interlocutors were white. These very comfortable government officials were not being disadvantaged by racial discrimination. Claimant Huntley’s portrait of the sorry plight of whites in South Africa did not ring true in this room.
“I must point out that the Immigration and Refugee Board’s decision is independent from the Government of Canada’s point of view. The IRB operates at arm’s length from government and is not susceptible to outside influence. However, we will convey your views to our capital, and we can assure you that what you have said to us today will be brought to the attention of the Canadian Minister of Citizenship and Immigration.”
I did not make specific reference to the minister’s ability to seek leave to appeal IRB decisions to the Federal Court of Canada. To do so would raise hope that the then-minister, Jason Kenney, would do so. I was certainly unaware at this stage of Kenney’s disposition. But I did stress to the director that I would get back to her on our government’s reaction to the message she had just so firmly delivered.
In fact, Kenney’s response was quick. Within 48 hours, he announced that he would indeed seek leave to appeal the ruling to the Federal Court, based essentially on what his department described as the poor quality of evidence on which the IRB decision had been made. This was hardly sufficient to quell South Africa’s ire. But it was the first step available to resolve the issue. When I contacted DIRCO as promised, they were satisfied that a path had been opened to overturning the objectionable finding.
Thumbing through the newspapers at home at the end of my first week in Pretoria, a column on the Huntley case in the Johannesburg Star caught my eye. The columnist noted that the South African government had officially protested by calling in the Canadian High Commission’s chargé, who was “the unfortunately named Mr. White.”
Race relations constitute the unavoidable and obsessional theme that dominates so much of South African life. It is particularly potent when it comes to reflecting upon the high levels of violence that characterize South African society.
Our house sat at the edge of one of Pretoria’s poshest neighbourhoods. Like all houses in the neighbourhood, it was surrounded by a tall and solid wall topped with coils of barbed wire and electric fencing. Entry was obtained through remote-controlled iron gates. The doors and windows were covered by steel grates. Within the house the sleeping area was separated from the other living areas by a heavy iron door, and once inside this “safe haven” the rest of the home outward to the exterior walls was protected by an alarm system.
Being at the edge of Waterkloof Ridge, rather than in the heart of the neighbourhood, meant that we were closer to some of South Africa’s more quotidian realities. The house looked over a traffic circle beyond which there were open fields and in the distance a view of the Waterkloof military air base. Blue-coveralled casual workers would gather on the circle every day in hope that a local contractor would need their labour.
The weekend of our arrival, our gardener, who lived in separate quarters on our lot, called us to explain that his son had lost his life in a highway accident while fleeing police. We learned a few weeks later of a murder of a neighbour several doors away on Orion Avenue. The 90-year-old Hans Swemmer was a man I had seen at the local petrol station. A veteran of the Korean War, he had been killed in his home, and his white Mercedes stolen. Later in our stay, an Asian diplomat, living even closer to us than Swemmer, was involved in an armed shoot-out with robbers in his driveway when returning from Johannesburg’s Oliver Tambo Airport.
During 2011 and 2012, on four separate occasions, the copper wiring carrying neighbourhood electricity was stolen from pylons outside our home. On each occasion the power failed, an extremely loud siren alarm was triggered, and our on-site diesel generator automatically kicked into action. One mid-summer day, firefighters were called to put out a fire lit by itinerants sleeping rough in an abandoned lot behind our house. A large, apparently luxurious manor immediately beside us was vacated shortly after our arrival and was soon occupied by squatters. Police arrived one day to investigate the death of an infant child. One night someone from the squatters’ villa tried to climb our electric fence, once again setting off our alarm. After each alarm, an armed, Kevlar-vested officer from a private firm under contract to the high commission would arrive on the scene, and we would have to report, carefully through the grates in our windows that we were safe. We didn’t need to look far to find violence and menace in South Africa.
South Africa continuously collects, analyses and makes public its crime rates. The government recognizes that crime is a dark blemish on their society, but progress on addressing it is slow. Although recent statistics show common assaults and robberies are in decline, murders, attempted murders, house robberies and car-jackings rose between 2015-16 and 2016-17.[2] Car-jackings were the highest in ten years (16,717); there were 19,016 murders, or 34.1 per 100,000 population, up from 18,673 the previous year. (By comparison, Canada’s 2017 murder rate was 1.8 per 100,000.) In 2018, the number of murders in South Africa was among the highest in the world, outstripped only by Jamaica, El Salvador, Honduras and Venezuela.
The legacy of apartheid runs deep. It persists most obviously in South Africa’s urban geography. The townships in which the black populations were isolated by law remain for the most part the neighbourhoods where blacks live today. Unemployed men from Mamelodi and Atteridgeville, to Pretoria’s northeast and -west respectively, lack skills and education. They were allowed only the most basic education in the apartheid years. There are few available jobs for them to give them viable means of support. Hawking cheap goods at intersections is often the best they can strive for. They constitute an unsatisfied labour pool and a breeding ground of resentment and disdain.
But victims of crime are everywhere, not only in the wealthy suburbs, where a large portion of whites live. In fact, most crime takes place within black communities. In sheer numbers, blacks represent the majority of South Africa’s crime victims. Still, many well-publicized crimes have potent racial characteristics. For example, the white supremacist Eugene Terre’Blanche was murdered by his two black farmworkers in 2010. In the same year, Bees Roux, a white rugby star, Such instances as these contribute to a sense that crime reinforces the potent dividing line between the black and white populations.
Fraught relations between blacks and whites can manifest themselves readily in daily life. A generous and genteel Afrikaner neighbour agreed to lend us her piano for the duration of our four-year stay. The piano arrived in the bed of a bakkie, a pick-up truck, driven by a sturdy Afrikaner. He was accompanied by a blind piano tuner and, sitting on his haunches in the cargo bed, a black man of perhaps 25 or 30 with a much-weathered look. The Afrikaner and the helper manoeuvred the piano up some steps to the patio, from where it would be lifted into the adjacent living room. The Afrikaner entered first. Carrying the piano over the lip of the door, the barefoot helper needed to step forward to balance himself, putting a foot briefly on the living room floor. A sharp look from his boss caused him to recoil immediately. It was evident that he was not allowed to even put one foot within the house. He stood shamefully back as the piano was finally pushed into place and tuned. As the tuning went on, the Afrikaner took the time to offer me his opinions about the debased condition of South Africa under the new multiracial regime. He averred that under God’s will and according to prophesy, the country would be soon rescued by Germans coming from the sky!
Not all white South Africans enjoy wealth and status inherited from the days of apartheid. I was surprised when the first beggars I saw in Pretoria were a young white couple crouching at the side of a highway off-ramp into the heart of the city. A young white man begging for coins was a steady fixture at the intersection of our road with the main highway to Johannesburg. Publicity always surrounded President Jacob Zuma’s occasional visits to white “informal settlements”, or squatter camps, part of his effort to recognize that all was not well for all members of South Africa’s white population. Brandon Huntley was a case in point. He was unemployed before deciding to leave South Africa on a temporary permit to work the Canadian summer fairs season.
Huntley’s case need not have become public. If he had not asked his lawyer Russell Kaplan, himself of South African origin, to announce the result to Canadian media, the case might still stand as an IRB precedent. The decision might have been overlooked among the literally hundreds of cases that IRB panels decide every year and gone unchallenged. But Huntley was intent not only on winning refugee status, but also drawing attention to conditions, as he saw them, of white South Africans in general and establishing a precedent for future claims. He wanted it known that Canadian authorities recognized the perilous conditions experienced by white South Africans. Unfortunately for him, the evidence presented before the IRB was not as convincing to Minister Kenney, or the higher court, as it had been to the IRB judge.
Huntley claimed he was attacked by black men on half a dozen occasions, but never reported these assaults to police. There was no official, documented record. To bolster the case, his lawyer Kaplan presented his own sister, Lara Ann, as a key witness. Both siblings had been horrified by the violent assault on their brother during a home invasion. Lara spoke of having been on two occasions “accosted by black South Africans and threatened with a gun.”[3] Her experiences contributed to her assessment that black South Africans “believe that all whites are equally responsible for apartheid and that ‘we should be eradicated and stomped on like an ant.’”[4] She went on to offer the opinion that “in any other country, a mass genocide . . . on such scale as is occurring against whites in South Africa, would be considered genocide and crimes against humanity.”[5]
The testimony was emotional and opinionated, and no doubt sincerely expressed. But it did not sway federal judges. The Federal Court granted Minister Kenney’s application for judicial review and the Federal Court of Appeal found that the case should go back to a newly constituted IRB panel. Ultimately, at the end of a long legal process, a judgement by Federal Court Judge James Russell prevailed. There was “no objective evidentiary foundation” to claims of systemic discrimination.[6] He was dismissive of Huntley’s claims to persecution. “There is no objective foundation for a finding . . . that he left South Africa because he fears race-based crime. He finds the lack of economic opportunities intolerable and he is looking for a better way of life. He is also, perhaps, fearful of the prevalent crime that exists in South Africa, but this is not, in my view, a sufficient objective basis to support a claim for persecution.”[7]
The judge then went on to dismiss the argument that the Minister would never have sought leave to appeal without diplomatic pressure, and the original ruling favouring Huntley would therefore have stood. “Even if diplomatic pressure caused the government of Canada to inquire into the Decision, there is no evidence that the Minister brought the application for any reason other than that . . . he decided to seek judicial review because of . . . errors in the Decision itself.” [8]
Huntley, after taking to case to the Federal Court of Appeal which ordered a new refugee determination case; subsequently losing on that second go-round; and finally losing an appeal of that decision, completed his odyssey through the Canadian courts. Huntley’s lawyer, Kaplan, does not believe that Canadian courts have properly come to grips with the issue. “The victims of crime are not just victims of crime but rather victims of crime related to a Geneva Convention motivation, namely race, which makes them refugees.”[9] However, as of June 17, 2014, his client Huntley had run out of options and was unprotected from deportation.
Other Canadian tribunals have weighed in on “white” persecution claims. Judge Alain Bissonnette, chair of an IRB Refugee Appeal Division, wrote the following in the case of six members of a white South African family seeking refugee status:
“South Africa remains a democratic society in which ethnic and political groups may express themselves and in which legal institutions pay equal heed to those in the black population as to those in the white population. . . . Whereas . . . violence and crime do form an integral part of the reality experienced by citizens of South Africa, I am of the opinion that . . . the recourse [is] provided by the laws and the Constitution allow[s] citizens, lawyers and judges to identify those responsible, to combat impunity and to reaffirm the primacy of each person’s fundamental rights.”[10]
The jurisprudence in Canadian cases has now been so amassed that Huntley’s lawyer, Russell Kaplan, says that “my honest belief is that decisionmakers are afraid to rule on racial grounds.”[11]
During my posting in South Africa, many white citizens I met looked to me to validate their feelings of anxiety about living in their country. I didn’t dismiss their fears. Yet the burden of crime is also borne by blacks in the crowded townships and informal settlements. The dangers of crime afflict everyone across the racial spectrum. As the Canadian judges concluded, general exposure to crime and violence does not represent racial discrimination.
In 2009, the South African government was right to raise the alarm over the original Huntley ruling. By doing so they set in motion a legal process in Canada that resulted in jurisprudence that quashed the claim that South African whites are targets of racial persecution.
South Africa is a fascinating country in historical and geopolitical terms. Its modern economy makes it a leader in Africa, and optimistic assessments see South Africa being at the vanguard of an economic transformation of the continent. Yet the country’s still failing struggle to provide opportunity to its large population of disadvantaged black citizens, a legacy of apartheid, represents a huge impediment to its economic prospects. It also provokes internal political strain that influences its foreign relations. Its economic and political struggles had important implications for Canada’s relations with South Africa and our ability to maintain a mutually advantageous partnership. During the years in which I was posted in South Africa, that partnership was strained in ways that went far beyond the row about the Huntley case.
They had sought from within the ministry to project the view that the government was open to modifying the apartheid system. Jacobs had been in the South African embassy in Bonn in the late ’80s when black and “coloured” rugby players were brought in to participate in international contests in Germany. Although scorned by many anti-apartheid activists, these contests were signs that the apartheid regime was starting to soften some of most rigid attitudes. (That blacks and whites could not play on the same field was one of apartheid many excesses.) ↑
https://africacheck.org/factsheets/south-africas-crime-statistics-201617/ South Africa Police Service statistics as reported by Africa Check. ↑
Federal Court of Canada: The Minister of Citizenship and Immigration (Applicant) and Brandon Carl Huntley (Respondent): 2010-11-24: IMM-4423-09; paragraph 8. ↑
Ibid.; paragraph 9 ↑
Ibid; paragraph 15 ↑
Ibid.; paragraph 57 ↑
Ibid.; paragraph 156 ↑
Ibid.; paragraph 254 ↑
E-mail between Russell Kaplan and the author ↑
Refugee Appeal Division, Immigration and Refugee Board of Canada, 2016 CanLII 37544 (CA IRB); 2016-01-22; 6 anonymous South African appellants in closed hearing seeking to overturn a negative ruling by the IRB, denying claims of persecution on the basis of race and political opinion. ↑
E-mail Interview with the author, April 6th, 2018. ↑