LETTER: Race classification done without a race classification law?

Letter from Legalite

Author: 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.



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The Rule of Law Project is an initiative of the Free Market Foundation (www.freemarketfoundation.com) and is dedicated to giving substance to section 1(c) of the Constitution of the Republic of South Africa, which provides for the supremacy of the Constitution and the Rule of Law.


  1. Bob

    It is unfortunate that our courts are blinded by emotional politics and not law. Any determination of a race was removed from the statute books in 1992 by De Klerk. Race therefore became self imposed, or group think imposed. In terms of the current law, you are free to declare yourself as to the race of your own choosing, this an illusion that I am sure most politicians would love dearly not to become common knowledge.

    This is exacerbated further by genetics. If one is to have one genes mapped, one would be a little surprised at the amount of mixed races one would discover in your gene pool. (I have had mine mapped and its extremely revealing on what my ancestors had been up to.) I have advised more than one person to declare themselves as they see fit, if it had an impact on opportunity. This they have done, and many realise they have been suckered, but in terms of current law, there is actually nothing they can do about it.

    We should not be hasty in define race in some legal frame work as this the quickest way to return to apartheid, and the pencil test. We must leave the politicians to realize their own folly, while the rest of us simply ignore their stupidity. Logic is not a domain for the emotional, or the political.

    Be what you want to be, criticizing or legitimizing the subjugation of rights by virtue of race is a dangerous ideology, and has everything to do with the misuse of power through identity politics. The accident that occurred determining your race when two humans interacted is beyond anyone’s control, how politicians believe they can encourage race blindness, by focusing attention on something the individual had no control over is beyond any logical framework, and leaves the victim in a trap.

    My advice still stands, ignore it and decide what you stand for and avoid the trap of identifying yourself as particular race group. You can change your attitudes and bad habits, those are a result of acquiring wisdom, through trial an error. Your skin pigmentation does not define you, as it was, is still and will always be beyond your control. Verwoed decided otherwise, the current politicians believe they can too, that they don’t look in the mirror, and see Verwoed smiling at them, is very telling. This is not law this is delusional politics at its very best.

    The problem they are trying to address is real, however the methods they have chosen have long since been dumped in the trash can of history, affirmative action through race quotas, has proved to be a disaster where ever it has been tried. Patience, ignoring or playing the game with the cards they have dealt, is history’s lesson.

    Have a beautiful day
    Bob Glenister.

  2. Riaan van Vuren

    Interesting letter and question.

    I worked for one of the big 5 auditing firms at the turn of the century. They send a form around requesting employees to self classify themselves by race. I refused to do so as race classification was the foundation of Apartheid and all the went wrong with it and because I believe people ar

    My refusal caused a panic in the firm and all sort of efforts was undertaken to change my mind.

  3. Loving v. Virginia was a Supreme Court case that struck down state laws banning interracial marriage in the United States. The plaintiffs in the case were Richard and Mildred Loving, a white man and black woman whose marriage was deemed illegal according to Virginia state law. With the help of the American Civil Liberties Union (ACLU), the Lovings appealed to the U.S. Supreme Court, which ruled unanimously that so-called anti-miscegenation statutes were unconstitutional under the h Amendment. The decision is often cited as a watershed moment in the dismantling of Jim Crow race laws.

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