The past few weeks have seen a wave of critical commentary targeting the IRR’s Index of Race Law, an initiative I have had the privilege of spearheading.
The Index records the some 319 pieces of South African national legislation that, since 1910, have directly, indirectly, explicitly, or implicitly operationalised the melanin content (skin-colours or ethnicities) of South Africans in some legally relevant way.
It is a resource borne from the need for transparency about the persistence of race-based law in a country that claims non-racialism as a constitutional cornerstone.
Factual veracity
The recent discourse kicked off with Anton Harber’s Daily Maverick broadside, followed by News24, and many more besides on social media. This comes after earlier criticism I already spoke to.
Each, while claiming to challenge the Index’s premise or accuracy, challenged only the Index’s vibes. These critics found, when they tried to debunk the Index’s factual record, that it was instead credible and veracious.
But because of the unease the Index causes them, they shifted from a fact-check to a vibe-check. This, then, served as a kind of successful peer-review for the Index – not the devastating takedown the critics might claim.
None of the critiques, as we have seen, truly dispute the core fact that these laws exist, and in some way use race as a legal criterion.
Instead, their disagreement hinges on sentimentality.
Stripped to its essence, the vociferous attacks on the Index come down to this: Yes, these are “race laws,” but we approve of them… so we’d rather you didn’t call them that.
It is a fascinating admission that does not refute the Index but rather only reveals the discomfort it provokes.
Anton Harber
Take Harber’s initial salvo, wherein he argued that the Index exaggerates the prevalence of race-based legislation by including laws that merely promote “inclusivity and representivity.” This is a favourite among the online critics as well, with a shockingly large number of people trying to claim that reserving seats for people based, among other things, on the colour of their skins is somehow not a racial measure.
The Index does not judge the morality or efficacy of the laws it records – it simply identifies them.
Nor does it inquire into constitutionality. Indeed, had the 1996 Constitution been an ordinary Act of Parliament, it would itself have been recorded on the Index, nestled between the National Small Enterprise Act of 1996 and the South African Institute for Drug-Free Sport Act of 1997, as a race law.
If a law mandates racial quotas or preferences in the appointment of civil servants – “inclusivity and representivity” – it is a race law, regardless of its supposed noble intentions.
Harber’s criticism, then, is not a denial of the laws’ existence but a plea to reframe them in softer terms.
This simply exposes a preference for euphemism over candour, rather than a true concern with factual reporting.
News24
In News24’s case, it “fact-checked” AfriForum’s and my use of the Index in a recent documentary, essentially accusing us of fuelling “disinformation” by tying the continued use of race in our law to a narrative of white victimhood.
The position here is straightforward: the Index is a neutral tool to be utilised by anyone.
It lists laws – verifiable in black and white – without prescribing how they should be interpreted. If AfriForum or anyone else uses it to make a specific case, that is their prerogative. The Index’s factual basis remains unscathed. In fact, by engaging with its contents, News24 – and all other critics – inadvertently underscored its reliability as a point of reference.
(As a member of AfriForum, I have taken no issue with how they have chosen to present the Index. They have not, to my mind, exaggerated anything unduly, and allowed me to freely express what is evident in the Index in their documentary.)
The Index is not about ranking laws as good or bad – it is about showing what is there. It is not, by itself, a moral scorecard. Whether a law is justifiable, trivial, harmful, or beneficial, is open for debate, but not with reference to the Index’s veracity.
These “rebuttals” have therefore inadvertently endorsed the Index’s premise.
They do not, ultimately, claim the laws are imaginary. The critics instead argue the laws are necessary, which is a position the Index neither endorses nor denies.
(Though, of course, the IRR’s, Free Market Foundation’s, and my own commitment to liberal non-racialism certainly denies that it is necessary to contrive politically expedient proxies for disadvantage when disadvantage itself is perfectly evident on its face.)
Rigorous stress-testing
This (often frustrating) process of peer-review should be welcomed: a rigorous testing of the work by engaged sceptics. Critics have grappled with the Index and dissected it. In doing so, they found little in the way of substantive error; though I remain open to the possibility that there are substantive errors, and hope for these to be identified and rectified sooner rather than later.
In some respects, this engagement has highlighted to me what could be improved in the Index’s presentation and user experience.
But in substance, the Index has passed its intensive peer-review process with flying colours.
The Index, of course, is not beyond critique – far from it, real fact-checking (and not what passes for it among the press today) is very necessary. But hitherto no one has disproved, debunked, or rebutted the presented laws’ racial character – they have just squirmed at the mirror being held up.
If critics want to defend these laws as vital tools of social justice, they are free to try. But insisting that the Index deny the evident racial character of the laws it records is a non-starter, because that would amount to outright lying.
South Africans – and those seeking to make South Africa the home of their investments – have a right to know how race still threads through our legal system 31 years into majoritarian democracy. This is the Index’s purpose, and its resilience amid this scrutiny speaks to its success.
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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Image by Gerd Altmann from Pixabay