In 1985 Frederik Van Zyl Slabbert, then leader of the PFP, a forerunner of the DA, chronicled his experience as a lawmaker in The Last White Parliament. 

This book has new relevance today, especially his chapter on ‘Race Classification’, which is worth revisiting in the light of a new dawn for race law in the Republic of South Africa.

The new EEA ‘entitlement’ to reject people from work according to racial ‘targets’ across an estimated 85% of the private sector is nearing enforcement, probably in the spring. Furthermore, ‘race’ is mentioned in a new draft law on what Home Affairs is supposed to track in its ID database. These are part of the new dawn of forced categorisation, but it expands to racial water quotas and further. It will be an ugly business, and Slabbert’s book has some indications of how.

Once upon a time, as everyone knows, the mad social scientists of apartheid ran around with proverbial test pencils in one hand and instruments of coercion in the other. Their mission was to socially engineer apartheid’s rainbow-ism – races targeted ‘but equal’ with white more ‘equal’ and the rest more ‘but’ – including between the sheets. Slabbert’s mission, as a liberal, was to snap a few pencils when he could, or turn them on themselves.

A major triumph occurred in 1985 when race law about sex was repealed, just before The Last White Parliament was published, but Slabbert retold the cases anyway. ‘Why focus on the negative and the exceptional?’ he wrote. Because as long as the government ‘continues to insist’ that forced racial classification ‘remains on the statute books, apartheid as a political concept will never die and South Africa will never be spared the consequences of its existence.’

While the definition of ‘white’ and ‘coloured’ in the Immorality Act was deleted in 1985, different definitions remained in the Population Registration Act, which was also known as the Race Classification Act. According to Slabbert, ‘one enthusiastic Nationalist’ liked calling it ‘the Magna Carta of race relations’.

So, Slabbert reasoned, the ‘immorality’ stories were relevant even though that bit of race law was deleted, because they illustrated the fundamental problem of forced ‘race categorisation’ in itself: a problem that re-emerges wherever race classification is forced. Procrustean masters call these ‘fringe cases’, but Slabbert’s point was that there were whole lives sliced to racial ribbons.

I quote only one such case, at some length, which is a kind of Shakespearean romcom. You could call it Love in the time of Apartheid, but I prefer Measure for Measure, or As You Like It, or Much Ado About Nothing. There are horror stories in ‘Race Classification’ too, but this has a gentler Dickensian Tale of Too Many Colours feeling, or, in the language of its subjects, it may be called Antonie en Kleopetronella: Verbode Liefde tussen die Liesbeek- en Swartrivier.

Whatever the name, here is the true story quoted at length:

‘One Sunday afternoon at about four o’clock the granddaddy (literally) of a race classification case stood on my doorstep. With him was a son-in-law. They had not been in my study for more than five minutes stating their case when it became clear that an inspection in loco was unavoidable. The father-in-law, let us call him Bodenstein (for it was an Afrikaans name of that length and sound), agreed to assemble his family two evenings hence. In the meantime, he left some documents and his own covering memo for me to study.

‘In 1952 or thereabouts, he had been a waiter of the South African Railways when he met and married a Coloured woman. He knew that it was not legal to marry, but as he wrote (and repeated many times afterwards), a ‘law cannot stop people from loving one another’ and he and his wife were very much in love and never anticipated what consequences would follow for them or for their children. So Mr Bodenstein forged his wedding certificate to make it look like a legitimate one. He could not forge his wife’s identity document though, but for some of the children he forged birth certificates, and others he did not register. Mr Bodenstein, being a healthy normal working class white, was not going to spend too much time underpinning the prevailing official ideology; he was more interested in getting on with the job of living.

‘However, things came to a head and Mr Bodenstein’s ingenuity went through a lean patch. One of his sons-in-law, let us call him Weideman, a crane driver in the Cape Town docks who had married one of Mr Bodenstein’s daughters with a dubious birth certificate, tried to register the birth of his second child. The first one’s record came up white, but the second one came up Coloured. Mr Bodenstein, flushed with the success of one of his grandchildren surviving the whiteness test, applied for the Book of Life for all the ambiguous children. Some came up white, others Coloured.

‘“Please help me”, he said. “Some of the grandchildren are on the point of going to school and you know Coloured schools are not as good as white ones. In any case my one daughter wants to get married to a white, her Book of Life came up wrong for her.”

‘The following Tuesday evening I went to Mr Bodenstein’s house in Woodstock/Observatory, a working-class white area. On the wall were chocolate-coloured pheasants flying off into a turquoise sunset over some pine trees, and there was a rearing black stallion in porcelain on the colour television. Twenty-seven members of the family were present: Mr Bodenstein and his wife, their children and grand-children. I explained to them exactly what they could expect from the Department of Internal Affairs while mentally putting each one of them through the 5(4)(c) test. This case had a lot of possibilities.

‘When I explained the “community acceptance” condition there was some good-natured laughter and I realised that in the Woodstock/Observatory area there were not too many pots who were going to call kettles Coloured. I asked each adult if he/she was prepared to go through the indignity of an investigation and they all declared themselves ready to do battle. By the time I left I had a diagram of a family tree that would make the line authority flow chart of a multinational company look simple.’

Forcing race testing into Home Affairs inevitably resulted in ‘a lot of possibilities’, then, and the same is going to be true now. The resolution is also telling.

Slabbert wrote to the relevant minister presenting two options. The government could classify the whole jolly lot as white, or else Slabbert would file paperwork supporting each application, from the grandmother down to her score of grandchildren separately and in triplicate. This would cause a laborious headache for the pencil-testers who would likely reassert the racial split between siblings under the direct signature of a cabinet minister.

That, it went without saying, would put powerful propaganda-war ammunition in the hands of Pretoria’s enemies. PW Botha was sensitive to this issue, signalling tolerance for true love regardless of race on the world stage with practical effect. Prosecutions diminished across much of the country, and ‘no convictions under the Immorality Act’ took place in Cape Town by 1981. 

But when the 27 Bodensteins were gathered to tell Slabbert their problem the laws were still in sufficient force to block siblings from going to the same school. Pen Kotze, then the Deputy Minister of Internal Affairs, said ‘he would not classify the grandmother white, that would be “cooking the books” too much. But…he was prepared to make half white now and the rest over the next few years. It took five years in all for the…tribe to become legally white’.

In case that makes Kotze sound enlightened, Slabbert recalls that when ‘Matanzima of the Transkei broke off diplomatic relations with South Africa’, Kotze ‘just laughed and [said], “That little kaffir had better watch it or we’ll take his porridge away.”’

Kotze radically transformed people to ‘become legally white’ to suit his own agenda. New agenda-setters have staged the ‘legally white / black / coloured/ Indian’ comeback with a vengeance, in law.

The consequences of EEA violations bottom out at fines of 10% of revenue, which would bankrupt most companies, while the consequence for workers on the wrong side of the target is to be denied job appointments. As the cases of Jelani Naidoo and Ncumisa Mayosi demonstrate, the new pencil-testers can rule anyone out of an appointment, and so far the courts have held pencils over persons just about every time.

New Era New Pencil-testers – Magna First Carta Later

The problem for people like South African Communist Party Deputy Chairperson Comrade-Minister Thulas Nxesi, who is driving the ‘more aggressive‘ approach to racialism’s red dawn, is that ‘race’ is being legislated back into Home Affairs half-cocked. There is still no official definition of what ‘race’ actually is. Disputes like the Bodensteins’ are irresolvable. The ‘Magna’ will be enforced with the ‘Carta’ yet to be written.

The ‘Magna’ is real business. EEA requires that every business with more than 50 staff must appoint someone to gather racial information like Pen Kotze. In some businesses there will be vicious little prefects eager to sharpen pencils into their colleagues’ hairdos, but legally speaking the stationery cupboard is empty. There is no real standard to work by.

For an example of competing standards the Magna Carta of race law was amended in 1962 to redefine the ‘legally white’ status so that even someone who looked as white as the Venus de Milo would not be ‘legally white’ if she ‘freely and voluntarily admits that [s]he is by descent a native or a coloured person’. That is ‘unless it is proved that the admission is not based on fact’.

So according to apartheid, you could not tell if someone was white just by looking at them. Does this standard, whatever it means, apply today? If the Bodensteins come out tomorrow and say, ‘Sorry, your honour, we admit that we pretended to be white for education, but now we admit our granny was coloured for jobs’, does that work? What if a black-looking person admits having a white ancestor? What about a white parent who adopted a black child? Or vice versa?

Slabbert had a telling joke about ‘not too many pots who were going to call kettles Coloured’ in Observatory/Woodstock. Even fewer clutch to the myth of ‘pure white’ blood today. Relaxed attitudes to ‘pure’ bloodlines are a welcome development, and Minister Nxesi’s professional pencil-testers are driving into the headlights of forced racial classification without criteria to cut the Bodenstein-blur back into boxes one way or another. 

The caution is this. The original racial Magna Carta was passed in 1950, two years into formal apartheid, and long after enforced racial splitting. Amendments were made throughout the 50s, 60s and 70s to sharpen the rods. Magna first Carta later worked for race law last time because enough judges were willing to shrug off the Rule of Law for a while.

The opportunity is this. I dare suggest that Slabbert would say: exploit the new dawn blindness while it lasts!

No one knows how to classify the Bodensteins today, because there is no decent rule for that case or, when jobs are on the line, any case. Maybe when you get asked for your race, or that of your neighbours, on a legal document it will be time to say, ‘the truth is I don’t know what you are on about’. Or, ‘EFF off’.

Gabriel Crouse is a Fellow at the Institute of Race Relations (IRR). He holds a degree in Philosophy from Princeton University.