Fifty-three years ago, liberal MP Helen Suzman railed against the latest amendment of apartheid’s keystone law, the Population Registration Act, warning John Vorster’s government that all the amendment would achieve ‘is to reveal once again our sick obsession in South Africa in regard to race and colour’.

‘It is a sick obsession that we have in this country,’ she went on. ‘It is the sort of thing that rules out any possibility of our being accepted as a mature or civilised country by the rest of the world.’

In hindsight, given the defeat of apartheid as a system (though, regrettably, not as a mindset), how unnerving it is to read Suzman’s almost clairvoyant 1967 observation that ‘there is nothing easy about classification in this country and there never will be’.

That this history lives and breathes in the egregious attachment of the post-apartheid State to the classification of its citizens and the ordering of society by race is illustrated by a deplorable event: disallowing the election of Advocate Ncumisa Thoko Mayosi to a statutory position – because she is a black woman.

Advocate Mayosi was one of the successful candidates in the election last year for four seats for advocates on the Western Cape’s Legal Practice Council (LPC), a statutory body that represents all legal practitioners in the province. But, having received the third highest tally of votes, she was disallowed from taking up her position because she fell foul of the prescribed racial and gender composition of the provincial council set by the minister of justice and correctional services and the national LPC.

The quotas for the Western Cape dictate that 50% of the advocate members of the provincial LPC must be male, 50% must be white, 50% must be black and 50% female.

How right Suzman has turned out to be.

Fittingly, her half-century-old sentiments feature in an amicus curiae brief that forms part of an application by the Cape Bar to overturn the decision to disallow Advocate Mayosi’s election. The matter is due before the Western Cape High Court next month.

Suzman’s ‘sick obsession’ warning features in the amicus brief filed by civil society organisation, Sakeliga, which, as its counsel Mark Oppenheimer asserts in his heads of argument, supports the relief sought by the Cape Bar, but for different reasons.

‘While the Cape Bar favours the use of race quotas that would set race-based minimums, Sakeliga opposes the use of all race and sex quotas …’.

Sakeliga’s objection rests on four points: ‘because race quotas depend on a system of racial classification by the State (which was)… in force during Apartheid but was dismantled in 1991’; ‘the foundational values in the Constitution of non-racialism and non-sexism serve to prohibit race and sex quotas’; ‘the Constitutional Court has clearly stated that race quotas are unlawful because they are arbitrary, capricious and display a naked preference; and ‘the LPC election was a perverted form of democracy that disregarded the will of the electorate and deprived an otherwise successful candidate of office because of her race and sex’.

Finally, Sakeliga argues, ‘if a non-racial approach is to be abandoned, then citizens must either be given the freedom to classify themselves without state interference, or the State must introduce measures that clearly delineate what factors will be taken into account to determine a person’s race, and provide a person who has been racially classified by the State the procedural rights to challenge such a classification’.

In his heads of argument, Oppenheimer draws extensively on the ignominious record of apartheid’s impact on people. 

We are reminded, among other things, of the ‘injustice (and absurdity) of allowing administrators an arbitrary discretion to dictate their own grounds for determining racial lines, (being) illustrated by the calling of barbers as expert witnesses to testify as to the texture of a man’s hair’.

But Oppenheimer also dwells on the counter-proposal: South Africa’s intended recovery from racialism and the striving to achieve its declared ambition of creating a ‘transformed’ just, non-racial society.

One cannot but feel a little wistful reading the extract from the 1991 African National Congress document, Constitutional Principles for a Democratic South Africa, and in particular the assertion that a ‘non-racial’ future ‘presupposes a South Africa in which every individual has an equal chance, irrespective of his or her birth or colour. It recognises the worth of each individual.’

This document foresaw a South Africa ‘in which all the artificial barriers and assumptions which kept people apart and maintained domination, are removed. In its negative sense, non-racial means the elimination of all colour bars. In positive terms it means the affirmation of equal rights for all.’

The post-apartheid constitutional injunction to non-racialism has attracted considerable and considered attention in the courts, too.

Here, for instance, Oppenheimer draws attention to Justice Moseneke in 2004 testing the extent to which the means of achieving a non-racial, non-sexist society is inseparable from the end.

‘[T]he long-term goal of our society is a non-racial, non-sexist society in which each person will be recognised and treated as a human being of equal worth and dignity. Central to this vision is the recognition that ours is a diverse society, comprised of people of different races, different language groups, different religions and both sexes. This diversity, and our equality as citizens within it, is something our Constitution celebrates and protects. In assessing therefore whether a measure will in the long-term promote equality, we must bear in mind this constitutional vision. In particular, a measure should not constitute an abuse of power or impose such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal would be threatened.’

On the same theme, Justice Sachs cautioned that ‘(without) major transformation we cannot ‘heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights’ but that ‘it is important to ensure that the process of achieving equity is conducted in such a way that the baby of non-racialism is not thrown out with the bath-water of remedial action’.

Justice Moseneke argued in 2014: ‘Remedial measures must be implemented in a way that advances the position of people who have suffered past discrimination.  Equally, they must not unduly invade the human dignity of those affected by them, if we are truly to achieve a non-racial, non-sexist and socially inclusive society.’

Oppenheimer goes on to argue that ‘if it is to mean anything, (non-racialism) must imply that government, including the LPC, will not treat individuals of different races differently for that reason alone. The importance of this principle given South Africa’s racially discriminatory history cannot be overemphasized. Discriminatory treatment at the hands of the state can and will only lead to the systematic denial of rights.

‘As its pedigree shows, non-racialism is framed as the absence of its opposite — racialism or racial prejudice. Thus, non-racialism cannot be achieved without the acknowledgment that its opposite, racialism, actually exists; that its effects should be countered, and its power neutralized. Non-racialism implies that the Constitution is founded on the imperative that a state should not racialize society by creating discrete statutory categories of identity from which there is no escape and between which there is no natural overlap.’

In the particular case of the LPC and its election for positions on the Western Cape council, it is telling that, as Oppenheimer points out, ‘candidates in the election were required to provide the following information; name, gender, province and whether they were advocates or attorneys’ and that ‘(notably), none of the candidates listed their race’.

While LPC application forms for prospective pupils, candidate attorneys and legal practioners ‘do not ask people to list their race’, the Western Cape LPC election results ‘do list the race of the candidates and those elected to serve’.

‘The inference to be drawn is that the LPC engaged in a racial classification process of its own. It is unknown what methods were used to determine the race of the participants, since no current legislation determined how South Africans are to be classified by race. Did officials surmise their race by looking at images of candidates alongside a pantone sheet of colours from light to dark? Was an assessment based on the person’s name?’

Oppenheimer goes on: ‘These questions deserve answers, but it is apparent that participants were burdened and benefited based on their race as determined by some unknown standard and by some unknown process. Furthermore, they were subjected to rigid race quotas with the result that Adv Mayosi was denied election to office for being classified as a “Black” woman.’

Oppenheimer cites the 2017 Supreme Court of Appeal judgment on the issue of quotas, in which the court held that ‘when dealing with remedial measures, it is not sufficient that they may work to the benefit of the previously disadvantaged.  They must not be arbitrary, capricious or display naked preference.  If they do they can hardly be said to achieve the constitutionally authorised end.  One form of arbitrariness, caprice or naked preference is the implementation of a quota system, or one so rigid as to be substantially indistinguishable from a quota.’

Oppenheimer argues that race quotas ‘require some form of racial classification to determine who counts as “black” or “white”’ and that ‘any state-imposed system of racial classification, creating as it does apparently objective and discrete categories of race, is deeply undesirable, as it requires a return to the thinking underlying the humiliating kinds of classificatory processes such as those that were used in terms of the Population Registration Act’.

This ‘requires us to ask a series of repulsive questions in order to draw a clear line between those entitled to preferences and those with no such right’.

‘One question that arises, for example, is how much “blood” from a particular “race” is needed for an individual to be considered a part of that “race”. Is one “black” parent, grandparent or great grandparent enough to be considered “black”? Would the same test be used to determine who is “white”?’

Thus, he asserts, race preference ‘does this terrible thing to our communities and to ourselves; it compels us to measure people by the colour of their skin and not the content of their character’.

Such reasoning is ‘at odds with the Constitution’s commitment to non-racialism’, and hinders the creation of a ‘free and tolerant society’.

‘The State,’ Oppenheimer argues, ‘should not be allowed to determine the worth of a person – be it on the colour of the skin or the communities to whom they choose to belong.’  

Yet, in 2020, the ‘sick obsession’ of Suzman’s phrasing continues to bedevil us – and, in the case due soon before the Western Cape High Court, with deeply ironic consequences.

As Oppenheimer states at the beginning of his heads of argument: ‘If this election and classification by a state body had taken place before 1994 it would now be considered a horror of the past, but unsurprising. The fact that it happened [in 2019] is an injustice beyond the pale.’

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