Anton Harber continues his defence of race law on the basis of the noble-hearted intentions of the selfless and pure souls who serve in South Africa’s executive and legislature, maintaining that a race law cannot be considered as such if the aura and vibe around it is about the achievement of good things.
While I am grateful for Harber’s continued engagement in the discourse, I had hoped some sense would have prevailed after my comprehensive rejoindering to him in the Daily Maverick. In that piece, I thoroughly rebutted each attempt he made to question the Index of Race Law’s credibility, including calling him out on one count of directly misleading readers (a lie, as opposed to a difference of opinion).
I touched on Harber’s broadside again subsequently in a Daily Friend column.
In both original articles, I maintained that Harber engaged in a “vibes-based” criticism of the Index of Race Law, and Harber says I have done this “to avoid dealing with the substance” of what he alleges.
Harber’s attacks lack substance, hence why I have in detail explained why I fear he is engaged in a “vibe-check” rather than a “fact-check.”
Allow me to illustrate that, again, with reference to his latest response.
Two definitions?
Harber’s first point is that the Index is utilising two definitions of race law: a “laughably wide” one for post-1994 (transformania) race laws, and a “laughably narrow” one for pre-1994 (Apartheid) race laws.
How am I to respond to such brazen dishonesty?
When asked by Harber via email, I indicated the single definition of race law to him, and this is confirmed by the Race Law website and every article I have written on the topic.
At no point has there ever been a separate definition for race law depending on the year that an Act was adopted. Harber is, regrettably, spreading disinformation.
But it does go to show something that Harber and other critics clearly would rather not discuss: their preoccupation with race laws adopted after 1994.
In my various emails with Harber, he did not inquire about a single pre-1994 race law. Email after email, he asked about the Acts adopted by the post-1994 government. This applies to everyone else who has publicly taken on the Index of Race Law as well.
For people claiming to be fervent opponents of Apartheid and advocates of social justice, their complete and utter disinterest in the period before 1994 is very illuminating.
It was only private citizens, far outside of the limelight, who have over the past two years raised their hands to assist in making the picture of the years prior to 1994 more accurate.
Harber submits that the “laughably wide” definition of post-1994 race laws include too many laws, surprisingly even laws that “don’t even deal with race.” This is, once more, a brazen note of disinformation, where Harber relies on the fact that most readers are not legally trained and will take him at his word.
With reference to each law Harber inquired about, I pointed him to the relevant racial provision, and in his vibe-check on Daily Maverick, he admits to all of them except one where he ignored what I told him via email and picked a provision at random from the Lotteries Act to utilise as a strawman.
Somehow, the ostensible post-1994 definition of race law also includes “laws that had long fallen into irrelevance.” How this is possible is anyone’s guess, since most of the race laws adopted after 1994 are either still in force or have been repealed and replaced by other race laws. This is simply a rhetorical flare without substance that Harber tacked onto his criticism.
At the same time, Harber wishes to submit that the “laughably narrow” definition of pre-1994 race laws (remember, there is only one definition) somehow excludes “thousands of laws.” And by this he means the many regulations, ordinances, and directives adopted by bodies other than Parliament.
While he is right that these do not yet feature in the Index – the Index only deals with Acts of Parliament – the very same Anton Harber would likely be very upset once the Index begins cataloguing regulations and non-national legislation.
Because, while the number of Apartheid-era race laws will balloon, so too will the number of post-1994 race laws. This is the nature of utilising the same definition across race law eras. But because Harber feels that this research exercise conflicts with his emotional commitment to the totalitarian project of social engineering that began after 1994, he cannot accept it as valid.
It is clear that Harber is using the “two definitions” argument in a puzzling attempt to create the impression that the Index underemphasises Apartheid race laws and overemphasises transformania race laws.
This is a particularly pathetic rhetorical device, because Harber knows that the Institute of Race Relations (IRR) and Free Market Foundation (FMF) were in the business of anti-Apartheid advocacy for a combined 84 years (the IRR for 65 and the FMF for 19), before continuing their non-racial project after 1994. But Harber knows that implicit accusations of Apartheid apologia are low-hanging fruit in South African discourse, and thus utilises that in the place of actual intellectual engagement.
No race classification? Regtig?
In his second, and perhaps most bizarre, submission, Harber tries to simultaneously maintain that South Africa has no racial classification, and that the Constitution allows race law.
Really?
It should not have to be said, but Harber needs to choose: either South Africans are not legally classified according to race, or “the Constitution allows race in our laws”.
If we are no longer racially classified, then “race in our laws” is moot and stillborn.
If race in our laws is however something legally substantive, then we are racially classified.
(The Constitution does allow race to be factored in when appointing civil servants and judges, and as such race classification remains a constitutional phenomenon in South Africa. But the degree of racial engineering since 1994 has gone far beyond what the text of the Constitution can bear.)
It is true that we no longer have a Population Registration Act, but we do not need one. The Employment Equity Act enunciates modern-day South Africa’s racial categorisation system. Though it is relatively incoherent and legally unsound, it is no less an instrument of racial classification that is seen in everything from university admissions to – much to Harber’s praise – now also homeownership statistics.
Of course South Africa has race classification, regardless of what the purpose of this classification (“addressing historical injustices”) is, or that it might have some limited judicial oversight.
We should not be gaslighted through sophistry or euphemisms into believing otherwise.
The mere presence of judicial oversight does not mean the legal phenomenon under consideration is not happening. We have judicial oversight of public procurement in South Africa, too, and that does not mean as a result that there is no public procurement.
Judicial oversight of racial engineering does not mean racial engineering is absent.
What is Harber really doing here?
He is desperate to have the Index of Race Law include some and exclude other race laws on the basis of the nominal purpose for which they were adopted. But he has to be smart enough to understand why this cannot be done.
If all it took for 1950s race laws to be rendered “not race laws” was for Hendrik Verwoerd himself to declare, “Hey, I have good intentions to address historical injustices or something!”, then the very category of “race law” loses significance and the whole conceptual basis upon which the struggle against Apartheid was premised evaporates.
Harber wants to draw me into a debate about the justifiability of race laws for redress. He asks, “Is Van Staden arguing that there were no historical injustices or that we should not address them?”
This is, of course, nowhere to be found in the Index of Race Law.
But Harber’s feelings of unease over his favoured laws being classified as race laws creates in his mind a necessity of normative debate about a simple statement of fact.
I am, naturally, very keen to engage him in such a debate. The IRR and FMF and others have tonnes of material and unrefuted arguments – not to mention plentiful historical and international experience – about why there are preferable alternatives to race law as means of redressing poverty and dispossession.
But I am not going to engage in that very separate debate until the present debate has been settled. And this is for a simple reason: Harber wants to use the second, unrelated debate, which is about a difference of opinion, to pretend to that he is addressing the first debate, which is about facts versus feelings.
All that will take is for Harber to admit that his favoured “redress” laws are in fact race laws, and as such can be categorised as race laws in an index that is designed to track race laws.
(Harber also believes, for some reason, that in 2025, South African sport administration bodies would still be dominated by white men in the absence of racial engineering by the august sages in Parliament and at the Union Buildings. George W Bush called this the “soft bigotry of low expectations.” I’ve known some bigots in my life, but none of them quite believed that black people are so devoid of merit that in 31 years they would have made absolutely no progress in the absence of nannying by the state. Apparently white men are so good at sports that blacks need not even apply to sit on these administrative bodies.)
Comparing pre- and post-1994 laws
Harber’s third point is all about me ostensibly comparing pre-1994 and post-1994 laws, with his argument obviously being that there can be no equivocation.
And here Harber ironically justifies the current structure of the Index of Race Law.
From the start, the Index was consciously designed to avoid normative evaluations of race law, specifically of the comparative kind. This would involve an unacceptable level of subjectivity on the part of the evaluator and would sap the Index of its credibility and use to those who do not align with the evaluator’s own beliefs.
Any equivocations that I make in op-eds and on social media between laws from the previous dispensation and the current dispensation are my own, and feature nowhere in the Index. Anyone who wishes to submit that my beliefs are implicitly informing the Index have a relatively high burden of proof to clear, given the simplicity and quantitative nature of the Index.
How Harber reacts in this instance is very illustrative of precisely the discourse the Index sought to avoid, and happily avoids.
Harber desperately needs the Index to engage in comparative evaluations. He wants pre-1994 laws to sit in their own (evil) category, and post-1994 laws to either not be counted (on the strength of the intentions and vibes behind them) or also sit in their own (noble) category.
At the same time, whenever a comparative evaluation is made, Harber reacts with outrage, because the person doing the evaluation does not share his own transformania.
What Harber is, then, in fact submitting, is that only those to the left of Karl Marx are allowed to evaluate race laws. Non-racialists and liberals, conservatives and orthodox Marxists, must stay away. Only those who drank the intellectual poison about race and sex that came out of European and American universities primarily since the 1970s may evaluate.
I, personally, will obviously compare pre- and post-1994 race laws outside of the context of the Index.
As a committed non-racialist, I hold the firm view that history’s most important function in society is the teaching of lessons. The pre-1994 era in South Africa taught us decisively that there is no place for race in law.
Race-in-law is always justified with good intentions and vibes but always results in injustice and harm to individual freedom and dignity. I take this lesson seriously.
Harber says we must pretend that this lesson was never taught, and must march forth to repeat perfectly avoidable mistakes when better alternatives are omnipresent.
No.
“Shoddy research”
We have now made it to the end of Harber’s second broadside against the Index of Race Law, without discovering an argument for why his preferred post-1994 race laws are apparently not race laws.
This is, after all, the only claim of the Index. It makes no other claims.
The Index is, simply, a catalogue of Acts of Parliament that make or keep race legally relevant, or allow an official or functionary to do so at their discretion. That’s it.
Harber writes many words, of course, but all of these come down to this: he likes the post-1994 race laws, and while he cannot really put forward a coherent argument for why these race laws are not race laws, his feeling of unease must be enough to compel us to remove them from the Index.
This is a vibes-based analysis. And he only characterises the work of the Index as “shoddy research” because those behind the Index – myself and others who have contributed over the past several years – do not share his ideological racialism.
I am, of course, eager for Harber to approach me with a list of Acts included in the Index that do not, in fact, operationalise race. These will be removed as a matter of course. But Harber desires getting what he wants without doing this necessary work first.
And so, we wait with bated breath.
[Photo: Iravaban.net]
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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