Letter from Legalite
Date: 17 February 2020
Because it is a fundamental principle of the Rule of Law that the law must be certain or, at least, that it must be determinable with certainty, I am faced by a conundrum: the affirmative action and BEE laws of South Africa are predicated upon race, and not disadvantage.
In particular, the issue of blackness is repeatedly emphasised by those functionaries tasked with the implementation of these laws.
Now, while it may be possible to determine disadvantage with reference to certain objective, and common sense criteria, the question is, how can blackness, or any other racial criterion be determined in the absence of a legally enforceable definition?
Because racial classification was done away with at the dawn of democracy, a definition is something we do not have.
If an individual who might, or might not be black, wishes to qualify for one of the considerable benefits of BEE, and consequently presents himself to the tender board as a black, but his blackness is disputed, by what legally credible means is the dispute to be resolved?
I would be most grateful if one of your “brains trust” could supply an answer.