Who is entitled to determine the race of a person – Polity, 2 December 2015

South Africa was one of the 51 founders of the United Nations (UN) in 1945. But by 1946 the treatment of South African Indians was placed on the UN agenda.

By Sara Gon 

South Africa was one of the 51 founders of the United Nations (UN) in 1945. But by 1946 the treatment of South African Indians was placed on the UN agenda.

In 1952 apartheid was raised over the violent reaction to the ANC Defiance Campaign.

With Sharpeville in 1960, the Security Council recognised South Africa as a threat to world peace and security. It called for measures to bring about racial harmony. Instead, South Africa banned the ANC and PAC.

In 1973 the General Assembly (GA) defined apartheid as "inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them.”

In 1974 the GA suspended South Africa from participating in its work. It was only “re-admitted” in 1994 (No country has been formally suspended from the GA). It is the only country “suspended” for human rights abuses.

And the cornerstone upon which every aspect of apartheid was based?

It was the Population Registration Act, 30 of 1950. It was the basis of the ‘legal’ veneer used to marginalise the majority.

The Act ordered the creation of a population register:

“5. (1) Every person whose name is included in the register shall be classified by the Director as a white person, a coloured person or a native, as the case may be, and every coloured person and every native whose name is so included shall be classified by the Director according to the ethnic or other group to which he belongs.”

A “coloured person” was “a person who is not a white person or a native”.

A “native” was “a person who in fact is or is generally accepted as a member of any aboriginal race or tribe of Africa”.

A “white person” was “a person who in appearance obviously is, or who is generally accepted as a white person, but does not include a person who, although in appearance obviously a white person, is generally accepted as a coloured person”.  

Clause 19 provided:

“(1) A person who in appearance obviously is a white person shall for the purposes of this Act be presumed to be a white person until the contrary is proved.

The Act was repealed on 28 June 1991.

The Constitution provides for the equality of all and the prohibition against racial discrimination.

“9(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and  other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discriminationmay be taken.” (IRR underlining)

The government has created a complex affirmative action and black economic empowerment programs to redress the inequities of apartheid. These have reintroduced racial classification without legislation to define race.

Jeff Rudin, in a letter in Business Day (25/11/2015), referred to the Constitutional Court case regarding coloured employees who claimed discrimination by the Department of Correctional Services in the Western Cape in terms of the Department’s Employment Equity Plan by promoting black employees over them by using the criterion of national demographics.

Rudin said that the dispute has no grounding in the Employment Equity Act (EEA), which does not recognise coloureds and Africans as separate classifications. Parliament has allowed regulations to be introduced that are in direct conflict with the Act. It defines "Black people" generically as Africans, coloureds and Indians.

Rudin was the ANC’s parliamentary researcher on the labour committee responsible for the EEA and said the absence of apartheid-style racial classifications was not an oversight.

Political parties tried to specify the designated groups in terms of their apartheid races. This was dismissed as odious and manifestly against the interest of the nonracial South Africa’s – to attempt to codify which races had suffered most under apartheid. Parliament dismissed any hierarchy of oppression as reproducing the divisiveness of apartheid.

Rudin says it is astonishing that regulations have been introduced that directly violate Parliament’s intentions. That there are official statistics on the number of African and coloured prison officials is itself an egregious violation of the law.

Who is entitled to determine the race of a person? How are they to do this without recourse to legislation setting out racial criteria? Would such legislation be Constitutional? How, for example, does one categorise the children of mixed-race couples?

Disadvantage is the only acceptable criterion: it is objective, benefits those in real need, and avoids benefitting people solely because of the colour of their skin.

Written by Sara Gon, Policy Fellow, IRR

Read the article on Polity here

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