Last week, I introduced you to the two Irishmen, Sean and Seamus, our friends who live on Paddyfield. Sean owns a medium-sized business in our area and, being no fool, keeps on the right side of the law.
When in doubt, he gets legal advice from Noah, a person whom he regards as right enough. Of course, the advice comes free: Sean’s trick is to pose his problem over dinner in an Irish brogue that, coupled with the rouge, makes refusing to reply seem really quite churlish.
Sean’s business is obliged to make an official return under the B-BBEE Act. It must show that, at every level of the firm, there are enough blacks (non-whites plus Chinese), women and disabled people to meet the requisite standard. The quotas are stiff and, in the upcoming years, are slated to become more exacting still.
Compliance will be policed by members of an accredited verification agency whose credentials have been carefully vetted. They are, to be sure, good people who are just following orders. “What work did you used to do, Grampy?” can be answered with a saintly smile – no cross look or ticking off needed here.
Sean plunges on. How do I tell if an employee is a black, for the purposes of the Act? Or, for that matter, female or disabled? Or, doubling and tripling down, if the subject is all three? Sean wants to be sure that he fills out the form correctly. As I say, he tries to keep on the right side of the law.
Noah tells him that each employee must make the race-based characterisation for himself. The employer must respect the choice, and the verifier, when called in, must too. If, in error or for devious purposes, the employee seems to be making the wrong choice, he can be called upon to make a declaration on which, in an interview with our saintly one, to be quizzed. But, Noah stresses, they cannot second-guess the employee’s choice; all they can do is make the wrong choice the subject of a complaint.
Disgruntled co-worker
The Commission created by the Act will typically initiate the complaint, but others, such as a trade union or a disgruntled co-worker, are not debarred from doing so. After investigating the matter, the Commission can make a finding or seek a court interdict. They can even lay a criminal charge based on the conscious falsification of data, which carries a prison sentence of up to ten years or a fine of ten percent of annual turnover.
The wine is flowing and the tongues are loosened. Sean is shifting moodily in his seat.
There seem to be two problems, he says.
First: How do I correct a report if the employee insists that he is coloured – okay, so-called coloured – when the Commission is satisfied that he is not a coloured so-called, but a white by calling? In the same spirit, what about an employee who proclaims himself Chinese (Taiwanese counts here, I think) but is actually a Korean or a Japanese dude? On top of this, let’s not forget that I have to classify people as women or handicapped; I shudder to think of the problems the Transistors or intellectually slow might pose here.
“You’re being pernickety, but carp away,” Noah says and, through the vinous haze, I dart a resentful glance at him before realising he is not disparaging the kingklip whose remnants still grace the table. (Yes, yes, I know I have been naughty, since kingklip is a candidate for inclusion as an endangered species. I excuse myself on the basis that, being a sort of whitebait, so am I.)
“Agreed,” says Seamus, rather disloyally shopping his friend, “the point Sean’s making is codswallop – the authorities will solve the problem somehow or other. You guys always want your laws to be clear. I mean, who cares, no one will go to jail because there is a chink in the legislation.”
“No standard”
Crestfallen, Sean turns to the second problem. This one, he urges, cannot be condemned as nitpicking. “How are assessments of race, gender or disability to be made if, as is so, no standard is established for the purpose by the enactments?”
Under apartheid, Noah declares, the matter was solved by the Population Registration Act. “I actually remember the definition of ‘white person’ upon which the other definitions in the statute depended. It went something like this. A white person is a person who ‘in appearance obviously is, or is generally accepted as, a white person unless, while looking like a white, he consorts with coloureds’. I mean, if we use the same tests, we can’t go wrong now, can we?”
What, we cry? You ask us to use the system of apartheid categorisation to determine post-apartheid redress? The bad old world is to drive the brave new world?
Well, yes, says Noah.
A deep dive into the internet the other day taught me that, since redress of race-based discrimination is supposed to be the object of the Act, being classified as black either personally or linearly under apartheid legislation should be, if not controlling, then at least highly instructive. On top of this, we can do genetic tests, examine family background, consider cultural aspects, and scan facial and bodily characteristics. If all else fails, we can poke a pencil through the subject’s hair to see if it will stick.
Yislaaik, we say. Well, the Irish don’t, but we do.
Exasperated
Sean is exasperated. “Look, you are telling me how to test, but you are not telling me what I am testing for. What is the quality of people that determines what colour, gender or physical integrity they are?”
Noah wearily explains that the law courts have been preoccupied with this issue down the years. “The best explanation is the one given by an apartheid cabinet minister years ago. ‘Man, I can’t define a coloured, but I know one when I see one. Your client is a coloured, no two ways about it.’“
Those who know their bushveld will appreciate that this is a variant of the elephant test. If you see an elephant coming towards you, appreciate that you have a problem and it is not one of animal genealogy.
Ushering my guests out, I was congratulated by one. “What a colourful evening,” she said, meaning I think to be witty. Another asked Noah, sotto voce, how Irishmen should be categorized. Both shall be nameless.
Personally, I think the evening has been a race to the bottom feeders.
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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