UCT's new admission policy

UCT's new admission policy has much to recommend it. In so far as it seeks to undo inequality, by looking at home and educational circumstances, it represents a major step forward. However, the criteria by which the ‘Faculty Discretion' is to be exercised, especially ‘racial diversity', are troubling.

In 1987, I was an LLB student here at UCT. In an evidence class, the lecturer discussed a  1957  Appellate  Division decision called R v Vilbro. It  concerned the admissibility of a witness's opinion as to whether the accused were ‘white' or ‘coloured' for the purposes of the Group Areas Act. The Court held that such an opinion was admissible. For, it said:

‘There may be people who have had a reason to apply their minds specially to the question of distinguishing the races. Such a witness was, in the present case, the Chief Inspector of Indian and Coloured Education . . . .'

‘[T]here may be people who, in respect of the persons whose race is in issue, may have had more opportunities of observing them than the magistrate. The latter only sees them in court, dressed up for the occasion, a woman probably with make-up . . . Other people may have seen them more frequently and in different circumstances, and have had more opportunities and more time of forming a definite impression about them.'

Upon hearing these passages, a student in the class, Zehir Omar, shouted out angrily: ‘Who was the judge?' I sat forward expectantly, like everyone else, keen to hear who this racist was. The lecturer answered: ‘Fagan CJ.'

The effect of this view of admissibility was that the accused's conviction under the Act was upheld. But that was not the main reason for Mr Omar's outrage and my shame. Indeed, I am not sure that the lecturer even mentioned this outcome. Our outrage and shame were grounded, primarily, on something that Mr Omar, and I, and many others in the class took for granted: racial classification, in itself, is morally repugnant. We knew that the division of persons into ‘coloureds', ‘whites' and ‘natives' had no biological basis. We knew that this division was not merely a social, but a political and ideological, construct. We knew that it took its life from, and was inextricably linked to, the practice of racism under apartheid.

You may know the book Racecraft, written by Karen Fields and Barbara Fields, and published last year. The Fields are sisters. One is Professor of History at Columbia University. The other is a sociologist, based at the Center for African and African American Research at Duke University. They have written a great deal on slavery, witch craft, and racism. The following extracts from their book show some of its key ideas:

‘Anyone who continues to believe in race as a physical attribute of  individuals,  despite  the now commonplace disclaimers of biologists and geneticists, might as well also believe that Santa Claus, the Easter Bunny and the tooth fairy are real, and that the earth stands still while the sun moves.'

‘Race is not an element of human biology . . . nor is it even an idea that can be plausibly imagined to live an eternal life of its own. Race is not an idea but an ideology. It came into existence at a discernible historical moment for rationally understandable historical reasons .... Thus we ought to begin by restoring to race . . . its proper history.'

‘[R]ace is neither biology nor an idea absorbed into biology . . . It is ideology, and ideologies do not have lives of their own ... If race lives on today, it [is] because we continue to create it today.'

‘[T]he first principle of racism is belief in race, even if the believer does not deduce from that belief that the member of the race should be enslaved or disfranchised or shot on sight by trigger-happy police officers . . .'

‘[W]hat "race" is' ‘is a neutral-sounding word with racism hidden inside'.

The current UCT application form requires applicants to identify their ‘population group', the choice being between ‘black', ‘coloured', ‘Indian', ‘Chinese' or ‘white'. An applicant may refuse to choose any of these, in which case he or she will be assigned to the open category. It is fair to assume that UCT's new admission policy will be implemented with an application form that requires more or less the same.

The effect of this will be a continued naturalisation of race. The division of persons into ‘black', ‘coloured', ‘Indian', ‘Chinese' or ‘white' is presented as part of the natural ordering of the world, rather than as what it really is, namely an historically-contingent, politically-constructed and ideologically-driven ordering. The historical, political and ideological connection between these categories and the racism of the apartheid state is simply swept from view. Rather than that categorisation being presented as being deeply-embedded in a particular history, politics and ideology, it is presented as a free-floating categorisation with a logic and reality all of its own.

Worse than that, the categorisation into ‘black', ‘coloured', ‘Indian', ‘Chinese' or ‘white' is supposed to be insensitive to distinctions of social standing or class. Being the son of a billionaire entrepreneur, or the daughter of an unemployed domestic worker, will neither qualify nor disqualify an applicant for any of the categories. It follows that the primary basis for categorisation must be biological difference. The effect, therefore, is not merely to continue the naturalisation of race. It is to entrench a form of bio-racism.

The Fields sisters gave their book the title Racecraft, because they see the idea that a person has a particular race as analogous to the idea that a person is a witch. Just as there are not really witches, and never have been, so there are not really races, and never have been. Neither ‘witch' nor ‘race' has, as they put it, ‘material existence'. Both the idea that a person is of some race and the idea that a person is a witch are merely ‘illusions' or ‘fictions' created and sustained by social practices. Now imagine that a university has decided to provide redress for those who were victimised on the ground that they were witches. It would be odd for the university to pursue that redress by asking every applicant to the university this question: ‘Are you a witch or are you not?', and then to make the provision of the redress conditional upon the person answering: ‘Yes, I am a witch.'

There undoubtedly are many applicants to UCT who, because of inequality, deserve preferential admission. However, to make an applicant's preferential admission conditional upon her having identified herself as ‘black', ‘coloured', ‘Indian' or ‘Chinese' is to make the receipt of something that is deserved, unconditionally, conditional upon a Faustian bargain.

To get what she deserves, as a matter of justice, an applicant is compelled to validate one of the foundational principles of the racist apartheid order - the principle that everyone falls, naturally and in a way that can be read off one's biologically-determined features in a mirror, or can be determined by inspecting one's nails or one's genitals, into one of the following groups: black, coloured, Indian, Chinese, and white.

Getting what one unconditionally deserves is made conditional upon one's willingness to treat as real, as essential, as natural, and as morally-neutral, an ordering of the world created by the apartheid state in order to pursue its racist objectives. If you do not admit to being a witch, you will get no justice. If you do not admit to being what D F Malan and H F Verwoerd decided you are, namely a coloured, a black, a member of the other, you will not get the justice you are entitled to. Writing about the American context, the Fields sisters make a similar point:

‘Like a criminal suspect required to confess guilt before receiving probation, or a drunk required to intone "I am an alcoholic" as a prerequisite to obtaining help, persons of African descent must accept race, the badge that racism assigns to them, to earn remission of the attendant penalties. Not justice or equality but racial justice or racial equality must be their portion.'

The continued requirement of racial identification in UCT's application form reveals a failure of imagination on our part. Damaged as we are by the experience of apartheid, we find it hard to envisage a future in which South Africans do not see each other through the spectacles which Dr Malan and Dr Verwoerd welded onto our noses. And because we find it so hard to envisage this future, we do not recognise that one of the first steps we must take to secure it is to remove the distorting lenses of our racist apartheid past. We must refuse, collectively, to continue seeing the world, and each other, in the way which the racist apartheid project required.

It is possible to do so. We have a policy in my family that none of us refers to race. As a result, my six year old, Lihle, does not see race - at any rate, not yet. Of course he sees skin colour, and hair colour, and so on. But he does not see race. A few months back, my daughter's boyfriend was having supper with us. Lihle turned to him and said: ‘Rahul, you and I are both brown.' But that was not a case of Lihle seeing race, and certainly not race as constructed by the racist apartheid state. For then he would have said: ‘Rahul, you are Indian but I am black.' - which he did not say.

Were I an idealist, I would now propose that all reference to race or population groups, as well as any requirement of racial classification, be removed from UCT's application forms. Like the Fields sisters, I would argue that what matters is not racial inequality and racial injustice, but inequality and injustice full stop. And I would argue, as they do, that a continued focus on race, on the one hand, is not necessary to achieve equality and justice and, on the other, is likely to blind us to, and therefore also to leave uncorrected, many of the inequalities and injustices that plague our society.

But I am enough of a realist to curb my ambition a little. I therefore propose, as a compromise, the following:

No applicant should be asked to state whether he or she actually is ‘black', ‘coloured', ‘Indian', ‘Chinese' or ‘white', or is a member of a population group so described. Instead, applicants should be asked to which of these groups the racist apartheid state most probably would have assigned them.

This way of posing the question makes visible the historical contingency of this racial classification and its connection with the racist programme of the apartheid state. It therefore helps to guard against the naturalisation of these racial categories, and against the entrenchment of the belief that they are an inevitable biological or cultural fact.

It also avoids the Faustian compact spoken of earlier: an applicant entitled to redress would not be required, as the price for getting it, to treat as true one of the racist apartheid state's great falsehoods, namely the claim that there are black persons, and coloured persons, and Indian persons, and Chinese persons, and white persons, and that each of these are a kind of person essentially different from every other.

Anton Fagan is the WP Schreiner Professor of Law in the University of Cape Town's Faculty of Law. He has degrees from the Universities of Cape Town and oxford. He teaches the law of delict and jurisprudence and has written on these as well as on constitutional law.

This article first appeared in Focus 71, the journal of the Helen Suzman Foundation. 

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