The Institute of Race Relations (IRR) launched the Index of Race Law on 1 December 2022 – the first day of Reconciliation Month. The Index represents an attempt to record all the instances of racial legislation adopted since the creation of the Parliament of South Africa in 1910 to the present day. The initial findings are startling.
The myth that endures abroad is that South Africa left race law behind in 1994. The beginning of the democratic era is treated synonymously with the end of legislated racial discrimination. South Africans know all too well that this view is mistaken.
But while most are familiar with laws like the Employment Equity Act and the Broad-Based Black Economic Empowerment Act, few probably know that there have been at least 116 new race laws since the democratic era began in 1994.
In all, since the Union of South Africa – and thus the single central Parliament – came about in May 1910, the legislature has adopted at least 313 Acts that in some way or another make people’s race or skin-colour legally relevant. Of these, 197 are from the years before 1994, and the rest after the dawn of democracy. The most recent race laws – the Property Practitioners Act and Foreign Service Act – date from as recently as 2019.
These numbers come with complications and provisos. Some pre-1994 laws that are still operative today, for instance, were originally non-racial, but were racialised by the post-1994 African National Congress (ANC) government. The Index showcases some of these anomalies, and no doubt more will come to light.
For the time being, the IRR’s Index of Race Law will seek only to comprehensively set out the racial record of the central Parliament. Indeed, closure on this phase of the Index is elusive, as the aforementioned numbers are not static. Every day of research reveals another piece of racial legislation, particularly from the pre-democratic era.
Who knew, for instance, that the Sugar Act of 1936, or the Nursing Acts of 1957/1978, were racial? I certainly did not, until I quite coincidentally stumbled upon them. This means that even after launch, more research will be required for the initial phase of the Index to be completed.
Once this has been adequately done, attention will be turned to executive regulations and legislation that originate in the provincial and local spheres of government. The judgments of the superior courts that introduce or condone legal racialism are also on the agenda.
Is post-1994 race law justifiable due to good intentions?
The Index does not break entirely new ground. Dr James Myburgh reviewed many instances of race law some years ago, as did Prof Koos Malan before him. Their research focuses on democratic era legislation, whereas the Nelson Mandela Foundation’s O’Malley Archives focus on pre-democratic laws.
Myburgh also looked at the arguments advanced by proponents of contemporary race law.
Among them are Mmusi Maimane and Max du Preez, who argued that democratic-era race laws are about ‘empowerment’ and are ‘designed with a restoration and healing motive’. Du Preez noted that race law of this nature is ‘completely in line with our Constitution’.
These attempted justifications of race law, which are widespread, are worth considering.
It is firstly noteworthy that race law is not in line with the South African Constitution, but for three exceptions. Government using the force of law to racially engineer South African society is undoubtedly unconstitutional, despite what misguided judges might believe.
That being said, however: does it matter?
Race law during the pre-democratic era was, in fact, ‘completely in line’ with the constitution as it then existed, which recognised Parliament’s competence to legislate racially as and when it wished. Does that mean people like Du Preez and Maimane would have accepted the legitimacy of those laws? Certainly not.
Whether it is constitutional or not does not detract from the serious problems inherent in racialised law-making.
The second, more usual point brought up in defence of contemporary race law, is that it is adopted with good intentions.
This is unfortunately a trap that many commentators – jurists and laypersons alike – fall into, and not only when it comes to race law.
It would, of course, be a mistake to conclude that a law is good simply because it is derived from good intentions. This superficial analysis, common as it might be, does great harm to society’s understanding of and interaction with legal realities and institutions.
The claim also presupposes, without argument, that the architects of race law during the pre-democratic era had bad intentions. As serious students of history know, this was not the case. Not in South Africa and almost nowhere else.
By far most of history’s most harmful laws were adopted with good intentions. The people who adopted them did not for one second consider themselves to be the ‘bad guys’.
While we might today recognise their thinking as erroneous and misguided – particularly when they ignored the imperative of public policy: respect for individual freedom – we would be misleading ourselves if we believed that they desired doing harm.
We might even regard their thinking as immoral – in that it did not then, or does not in retrospect, comport with certain substantive standards of morality that ought to be espoused. But even immorality is usually pursued with the best of intentions.
Even the National Socialists in Germany perversely believed that their manifest desire to do great harm to the Jewish people and other ‘undesirables’ was, somehow, for the greater good. But this desire to do harm is a rare exception in the recent history of law-making.
Indeed, the situation is different in South Africa. When it comes to South Africa’s historical race laws, one will easily find racially condescending remarks by politicians motivating these interventions. But it will be difficult to find any of them indicating an aspiration to impoverish or denigrate any section of the population.
In both cases, however, the road to Hell is well and truly paved with good intentions.
At the foundation of South Africa’s historical race laws was the deeply flawed, but nonetheless sincere, notion that the various groups that have come together in the region known as South Africa cannot co-exist harmoniously unless government adopted laws to order that harmony. If these groups had their own domains where they only exercised influence and control over themselves, it was thought, there would be peace and prosperity.
White supremacy was sprinkled throughout. Not the notion that whites may abuse and dominate, but that whites have an ostensible duty to act as custodians or trustees for the ‘backward’ other races as they developed.
This misguided and immoral thinking led precisely to the opposite of what was intended. Conflict and suffering were a result of race law. Even the Nationalists themselves had this realisation when they began to water down Apartheid legislation from the 1970s onward.
The harm of race law
At no point, however, can it be said that the Nationalists had bad intentions, and that the democratic era government on the other hand has good, ‘restorative and healing’ intentions. Both had, and have, good intentions behind their race-law enterprise.
Today, South Africa is burdened by another deeply flawed, but nonetheless sincere, notion that racial legislation will help alleviate poverty, reduce inequality, and restore dignity.
But the fact that race law is well-intentioned and might be constitutionally compliant does not detract from the reality that it remains race law.
Race law is by its very nature harmful, and by its very nature results in disharmony.
The consequences of race law speak for themselves, and cannot be discounted as arising from pure motives. Apartheid’s race law excluded millions from free economic participation – for no reason other than what they looked like at birth – denying them private property rights and job opportunities, among other handicaps.
Post-Apartheid race law has, in turn, in the name of ‘righting’ the wrongs of the past, instead engaged in even more ‘left-ing’ by keeping political considerations at the core of economic activity. In this respect, little has changed regarding the mentality of law-making between the pre-democratic and democratic eras.
In other words, free economic participation continues to be denied.
The result has been that businesses have had to take extraneous racial factors into account when procuring goods and services, appointing staff, and selecting board members. This grand misallocation of resources – according to political, not market, forces – retards economic growth by artificially suppressing important economic institutions like freedom of contract, the profit motive, price signals, and private property rights.
The intensity of contemporary race law is far less economically deleterious than what came before, but its own destructiveness is not to be discounted. Millions are poor today not only because of historical laws, but because contemporary laws necessitate the misallocation of resources that could have been utilised beneficially.
Law and non-racialism
Distinguishing between legal subjects on the basis of race is arbitrary and serves only short-term political goals.
It has long been recognised in common law – of both the English and Roman-Dutch varieties – that law has no business discriminating against its subjects based on their race or skin-colour. Nationalist academics during the early twentieth century, while extolling the virtues of South Africa’s Roman-Dutch legal heritage, conveniently ignored this fact.
Common law systems of whatever nature necessarily tend toward generality and universality in their principles and application, rather than giving effect to particular political and social requirements during perceived moments of change.
It is no surprise, then, that the South African Constitution, in its founding provisions, establishes “non-racialism and non-sexism” as constitutional imperatives. Legislated racialism was supposed to have ended at the beginning of the democratic era.
The IRR’s Index of Race Law shows how far we have strayed from this ideal. And while the Index is a quantification of how law-making has gone awry, the hope is that it will be utilised as a roadmap to legal sanity, to ultimately break South Africa’s enduring legislative tradition of racialised law-making.
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