Race law in South Africa 30 years into ‘non-racial democracy’-MARTIN VAN STADEN

The following is an edited address I delivered at the AfriForum conference, ‘A critical look at the South African government’s race obsession,’ in Centurion, on 13 May.

Thank you, AfriForum, for the opportunity to present here on the prevalence of race law in South Africa.

A dedication to non-racialism

I must start by defining my capacity. I am here today as the Head of Policy of the Free Market Foundation (FMF), a classical liberal advocacy group dedicated to the promotion of individual liberty, private property, free enterprise, and limited government.

The Index of Race Law which I constructed and maintain, however, I do on behalf of the South African Institute of Race Relations (IRR), which is also a classical liberal entity and one of the oldest such institutions in the world.

The IRR was founded in 1929 specifically to add a counternarrative to the racial orthodoxy that existed at the time. Relying on data and credible investigations, the IRR was able to show that race law was a folly, and this advocacy almost led to the abandonment of segregationist policies in the late 1940s. The government of the day was however, infamously, replaced, and race law continued to grow for another half century.

The FMF, meanwhile, was founded in 1975, arguably at the very apex of Apartheid, shortly before reforms away from race law began. The FMF’s singular goal was to advocate for why a free-market capitalist economy is preferable to the authoritarian regimentation that boxed most South Africans into inescapable parameters back then.

Both of these organisations are fiercely dedicated to the principle of non-racialism, and have been, before, during, and after Apartheid, so I need not watch my step with my dual role here today.

One of my very simple purposes here today is to show that race law is alive and well in South Africa. This is something that most, though surprisingly not all, South Africans know. But much of the rest of the world believes that legislated discrimination ended in 1994.

I hope this slide, which is my only slide, can put that fantastical notion to bed.

But before I get too ahead of myself, we have to begin by answering the most basic question applicable here: what is race law?

What is race law?

First, let’s answer this: what is the common law? The common law are those legal rules and understandings that have been recognised, applied, and refined, over centuries by successive generations of jurists and judges.

Common law rules do not and cannot materialise out of thin air by legislative decree but must be based on the reasoned application of pre-existing legally relevant principles.

Well, at common law, there is no such thing as race. The common law distinguishes between natural and juristic persons as legal subjects, which are individuals and corporations, and it does at times distinguish between men and women.

There is no common law of race. Under all circumstances, a person’s skin colour is irrelevant in the common law.

So, for race to be legally relevant, one usually requires a statute, which could be a constitutional statute or a normal piece of legislation, or an executive regulation.

For the purpose of the Index of Race Law, a statute that makes a person’s race, skin colour, or ethnicity legally relevant, is a race law.

Race law over the years

The Index was last updated on 24 October 2023, so all references to its current state will be to that date.

As of then, there were 141 Acts of Parliament on South Africa’s statute book that may be regarded as race law.

In total, Parliament has adopted 313 racial statutes from the year 1910 to the present day.

37%, or 116, of those, were adopted during and since 1994.

Of course, many of the 313 have been repealed. But, as we stand here today, there are 141 Acts of Parliament on the statute book that make race or skin colour relevant. That is an astounding 45%, almost half, of all the race laws ever adopted.

So, a clear handful of these are pre-1994 Acts, and I will get to why that is relevant and potentially misleading in a moment.

But first, some interesting notes from these numbers.

During Apartheid, the year 1980 was the year in which the greatest number of racial Acts of Parliament were present on the statute book, being 123 race laws.

Since 1980, the number of racial Acts of Parliament began steadily declining, reflecting the National Party government in its reformist phase.

Racialised legislation on our statute book reached its lowest point in 1996, when there were ‘only’ 52 racial Acts of Parliament. That is the closest we have ever gotten to a period that might now be referred to as the ‘good old days’ of non-racialism.

But since 1996, the number of race laws has increased dramatically, with 1998, which is only two years later, being the absolute worst year for raw numbers of race laws adopted in South African history.

20 racial Acts of Parliament were adopted in that year by the new democratic legislature.

The year with the second highest number of race laws adopted, ever, in our history, is the year 2000, with 17 Acts of Parliament that make race legally relevant.

Coming in third place, with ‘only’ nine race laws adopted during that year, is 1976. 1976 is the year during which the Apartheid government adopted the most race laws. 1998 and 2000 are the years during which the democratic government adopted the most.

In the year 2007, we reached the peak of 1980 again, with 123 racial Acts of Parliament in total on the book. From there, it climbed to where we are today. 141 parliamentary race laws that might be described as ‘operative’ or ‘active’ law.

Complexities of counting race laws

Now, ladies and gentlemen, just getting back to how laws are classified as either pre-1994 or post-1994.

Constructing the Index of Race Law was a complex exercise.

This complexity might be why the Index of Race Law is the first initiative of its kind in South African history. South Africa is and has been a global mecca of race law for at least a century, after all, and yet no attempt has ever been made to comprehensively account for law on the book.

Some work was done by the Nelson Mandela Foundation on pre-1994 race laws, but that did not even scratch the surface, and only listed the ‘big’ Apartheid laws. After 1994, Professor Koos Malan and Dr James Myburgh also did useful work on accounting for the significant race laws of the so-called new South Africa, but these exercises also missed a lot of the less notable laws.

Finding all the race laws was no easy feat. Even now, it is possible that the Index is missing some racial Acts of Parliament, but I can say with a fair degree of confidence that it has captured at least almost all of them.

If you try to engage with the Index, however, you have to do so holistically. Doing so half-heartedly might give you misimpressions of the reality of race law in South Africa.

Allow me to give you an example.

The Insolvency Act was adopted in 1936. It was, then, a non-racial Act of Parliament.

However, in the year 2003, the Insolvency Act was racialised through amendment.

This act of racialisation, however, does not change the fact that the Insolvency Act is an Act from 1936 that is a race law.

In other words, the Insolvency Act is counted as a pre-1994 race law in the Index, even though it was only racialised after 1994.

That is one thing to note. The other relates to double counting.

There was, for example, some confusion recently around the Employment Equity Amendment Act.

For those who do not know, this Amendment Act, obviously, amended the Employment Equity Act. The amendment significantly worsened the racial aspects of that law. Some people believed that this amendment should therefore have been counted as another race law, and I understand that reaction.

But the Index excludes Amendment Acts, because it has to.

An Amendment Act, in 99 out of 100 cases – there are exceptions, reflected in the Index – only introduces new law into already existing Acts of Parliament.

To count both the Act that is being amended, and the Act that is amending it, would mean that one race law is counted as two. And if we did that, we would significantly overstate the extent of race law in South Africa.

It is bad enough as is. We do not need to jimmy the numbers.

Thus, whenever there is an Amendment Act that racialises a non-racial Act, it is counted as just one race law, and whenever there is an Amendment Act that further racialises an already racial Act, like the Employment Equity Act, it is not counted at all.

The Index explains these and other quirks and does not try to hide it or exploit it for shock value. All the relevant information is provided to users.

Supporting the Index

The Index of Race Law is currently not a funded project, which means development is slow going. At the present, the Index only records and monitors Acts of Parliament, being legislation adopted by South Africa’s central Parliament.

But that is not the only place where race law exists. Our provincial legislatures might have adopted racial Provincial Acts, and even our municipal councils might have adopted racial bylaws. Our courts, I know for a fact, have handed down racial judgments. These are all also race laws but are currently not factored into the Index.

If anyone here, or those watching at home, is interested in helping the Index into its next phases, please do not hesitate to get in touch with me.

Is Apartheid dead?

At this stage I must emphasise that the Index of Race Law intends to be a tool for everyone. It does not, at least not explicitly, pass judgment on the desirability or not of race law, and it does not attempt to qualify the harm, or the good, that any given race law does. At least in its current state, the Index is not an analytical tool, but simply an informative database.

That being said, that does not stop me or anyone else who utilises the Index to use its information for further analysis, which is what I will now briefly do.

In 2021, a book titled The New Apartheid appeared, written by Sizwe Mpofu-Walsh. The subtitle of that book is ‘Apartheid did not die, it was privatised.’

While Mpofu-Walsh is a race-hustler of note, this is by no means a new idea. In the late 1980s and early-to-mid-1990s and thereafter, people like Albie Sachs, who went on to sit on the Constitutional Court, and Dennis Davis, who is still around simultaneously as a judge and political commentator – yikes! – made similar observations.

In their view, it would have been unacceptable, and today is unacceptable, that one might still find ostensible racial imbalances in the private sector. To them, that is simply a continuation of Apartheid by other means.

In my view, the first part of that subtitle is correct, Apartheid did not die, at least not entirely. But the second is only partly true, and certainly not true in the way Mpofu-Walsh, Albie Sachs, and Dennis Davis believe it to be.

The racial categories of the infamous Population Registration Act of 1950 continue to exist in law in this country despite that law being repealed back in 1991. They were reincorporated into our law by reference, in terms of the 1998 Employment Equity Act. This cornerstone law of Apartheid, the Population Registration Act, remains law by reference.

Apartheid did not fully die, ladies and gentlemen.

The privatisation of Apartheid

But how, indeed, has Apartheid been privatised?

Well, a significant dimension to race law, perhaps the most significant dimension, in post-1994 South Africa, is self-classification and self-enforcement. This is true for the really harmful race laws, like the Employment Equity Act, the Preferential Procurement Policy Framework Act, and the Broad-Based Black Economic Empowerment Act.

Without voluntary buy-in from the private sector, with some exceptions, these race laws would be dead-letter law.

The less harmful stuff, like representivity, is enforced by government.

And, I must add, most post-1994 race laws, by far, are concerned with representivity.

What is representivity?

It is a provision that requires that some board, committee, council, or other body, reflect the racial demographic makeup of South Africa. The Constitution itself alludes to requiring representivity, but that is a big topic for another day.

While representivity is very important to many people, as a classical liberal with a healthy dislike of anything and everything to do with government, especially given the collapsed state of South Africa’s government today, I do not think it matters too much.

Yes, representivity is used by the corrupt as a tool to appoint friends and family to powerful positions and to avoid questions of merit and qualification.

But I promise you, if there was no representivity requirement or if it was reversed, the African National Congress would have been able to find perfectly incompetent white friends to put onto these bodies.

The state is collapsing, not due to representivity, but due to a government that is not only criminally corrupt, but ideologically corrupted as well.

The real harm, then, is not the hundreds of race laws that require public-sector representivity, but the small handful of race laws that I already mentioned, that require private-sector representivity. These are the laws that ‘encourage’ business owners to make racialised employment decisions and in many instances require private sector actors who provide necessary goods and services to the public on behalf of government to be racially evaluated.

This is the privatisation of Apartheid, even though, if you ask me, as someone with a bunch of law degrees: no provision of the Constitution may be read to allow the government to enforce racial regimentation in any private entity.

Pre-1994 vs post 1994 race law

Allow me to conclude on an important note, ladies and gentlemen.

We have to be conscious of the fact that the race law that existed prior to 1994, was significantly more harmful to society than race law after 1994, for two reasons.

The first reason is that pre-1994 race law was significantly more fundamental to everything: society, culture, economy, politics, law, and so forth.

Post-1994 race law is doubtless more peripheral and cosmetic, although every year or so it gets more fundamental and more harmful. Soon, for example, independent estate agents who have a too pale skin complexion simply will not be able to do business. It is getting worse.

The second reason is that the pre-1994 government was a significantly more effective and competent institution. With some notable exceptions, whenever that government wanted to implement a policy, it simply did so.

The post-1994 government is an incapacitated, inept, and inefficient mess that cannot deliver on even the most basic functions that governments everywhere are arguably responsible for.

The result is that the pre-1994 government implemented its racial policy quite effectively, again with exceptions, and this made its racial policy more harmful. The post-1994 government is almost entirely unable to implement its racial policy, making it less harmful.

Small mercies.

‘Good intentions’ – who cares?!

But though we acknowledge that pre-1994 race law was a more harmful institution, that does not excuse the many race laws we live under today. Race law per se is anathema.

We are constantly told that pre-1994 race law was malicious but post-1994 race law is justified because these race laws are intended to repair the injustices of the past.

But intention can never be as powerful as the defenders of race law seek to make it. Here I am not only talking about the consequences of post-1994 race law, which have been detrimental to South Africa’s socio-economy, but I am talking about the very nature of race law and the very nature of intention.

Pre-1994 race law was not malicious. It was authoritarian, it was collectivist, it was ill-considered, it was misguided, and it had disastrous consequences, but it was not ill-intended. Apartheid was a crime against humanity, but it was one of criminal negligence, not criminal malice.

The architects of pre-1994 race law believed, in error, that racial engineering was the only viable solution to the clash of cultures.

Like so many today believe as well, the planners of former years believed that they could successfully design a society from the comfort of political committee rooms, without harming anyone’s vital interests. They were wrong, and we today cannot ignore just how wrong they were. We have to learn from their mistakes and do our very best to address the consequences of those mistakes.

Post-1994 race law is also not malicious, but its good intentions do not save it any more than good intentions save old race law.

Understanding intention is important for a holistic understanding of history, but in matters of public policy, when intention comes up, the only relevant question is this: who cares?

Race law and the rule of law

Race law per se – despite any intention to the contrary – is disastrous for people’s interests, but race law is also fundamentally offensive to any good understanding of law and constitutionalism.

Race law conflicts with the most basic assumptions about the rule of law. One of those assumptions, and indeed requirements, is that the law may not and must not require the impossible.

In 1971, if you wanted a good, Western education for your child in South Africa, you had to be white. Nobody can change their race.

Today, in 2024, if you want that last available spot for a medicine degree at a premier university, you have to be black. Nobody can change their race. This biological fact has not changed since the height of Apartheid.

Race law requires the impossible – not the improbable, nor the unlikely – but the impossible.

Race law uses something over which people have zero control – the colour of their skins – against them. There is nothing anyone in a disfavoured racial category can do about their lot, other than finding ways to circumvent those laws that undermine them.

This is called ‘fronting,’ this is called ‘fraud,’ and it is called ‘undermining transformation.’ But if you ask any legal thinker who truly understands the purpose of law in society, this is called necessity.

Thank you.

 

SOURCE:Race law in South Africa 30 years into ‘non-racial democracy’ – Daily Friend