[150]The second guiding consideration is that Parliament be sensitive to the need to avoid a remedy that on the face of it would provide equal protection, but would do so in a manner that in its context and application would be calculated to reproduce new forms of marginalisation. Historically the concept of ‘separate but equal’ served as a threadbare cloak for covering distaste for or repudiation by those in power of the group subjected to segregation. The very notion that integration would lead to miscegenation, mongrelisation or contamination, was offensive in concept[1] and wounding in practice. Yet, just as is frequently the case when proposals are made for recognising same-sex unions in desiccated and marginalised forms, proponents of segregation would vehemently deny any intention to cause insult. On the contrary, they would justify the apartness as being a reflection of a natural or divinely ordained state of affairs.[2] Alternatively they would assert that the separation was neutral if
- ↑ Justifying the exclusion of a child whose mother was referred to as a coloured woman from a school for children of European parentage or extraction, de Villiers CJ in Moller v Keimos School Committee and Another 1911 AD 635 at 643–4:
“As a matter of public history we know that the first civilized legislators in South Africa came from Holland and regarded the aboriginal natives of the country as belonging to an inferior race. … Believing, as these whites did, that intimacy with the black or yellow races would lower the whites without raising the supposed inferior races in the scale of civilization, they condemned intermarriage or illicit intercourse between persons of the two races. Unfortunately the practice of many white men has often been inconsistent with that belief. … These prepossessions, or, as many might term them, these prejudices, have never died out. … We may not from a philosophical or humanitarian point of view be able to approve this prevalent sentiment, but we cannot, as judges who are called upon to construe an Act of Parliament, ignore the reasons which must have induced the legislature to adopt the policy of separate education for European and non-European children.”
- ↑ See Loving v Virginia 388 US 1 (1966) at 2–3 Warren CJ states that a Negro woman and a white man were sentenced to a year in jail for their interracial marriage. The trial court judge, however, suspended the sentence for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years. The trial court judge stated that:
“Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”
