New index reveals how the ANC has failed to deracialise South African law

1 December 2022

South Africa’s Parliament has adopted at least 313 pieces of racial legislation since 1910, about 37% (116) of them after 1994.

To highlight how far South Africa has come – and how far it still needs to go – in ridding itself of legislated racialism, the Institute of Race Relations (IRR) is today [THURSDAY 1 DECEMBER], on the first day of Reconciliation Month 2022, announcing the launch of its Index of Race Law.

The Index of Race Law aims to be the first comprehensive, freely available record of the South African government’s racial legislation.

The Index can be accessed at www.RaceLaw.co.za.

Other useful, oft-cited sources, such as Wikipedia’s ‘Apartheid laws in South Africa’ category and the Nelson Mandela Foundation’s O’Malley Archives, record only a fraction of historical race laws; no updated source, to our knowledge, indexes the post-1994 record of race law.

The initiative follows established IRR tradition. In 1978, the IRR published Laws Affecting Race Relations in South Africa 1948-1976, compiled by respected IRR archivist and researcher Muriel Horrell. The IRR’s annual Survey of Race Relations, published throughout the pre-democratic era before becoming the South Africa Survey, also had the cataloguing of race law as a defining characteristic.

At the outset, the Index focuses only on Acts of Parliament adopted between 1910 and the present. In future, the Index will also record regulations, legislative instruments of provinces and municipalities, and the judgments of the superior courts – everything that is considered ‘law’.

The Index will be periodically updated as the IRR’s historical research develops, and as the legislature adopts new race law.

Martin van Staden, IRR Deputy Head of Policy Research and editor of the Index, says: ‘The Index will not only enable the IRR and other civil society actors to be more effective, better-informed advocates of non-racialism, but will also serve an important archival role for historical and social researchers – as well as foreign investors – who seek an accurate picture of the state of legislated racialism in South Africa.’

As the governing African National Congress (ANC)’s leadership conference is held this month, it is an appropriate time for the party to reflect on the fact that it has not presided over the deracialisation of South African law.

Non-racialism is a legal imperative found in section 1(b) of the Constitution.

Notably, in addition to retaining some pre-1994 race laws, the ANC has introduced racialism not only in new legislation adopted during the democratic era, but also into legislation from the pre-democratic era that was originally non-racial. This latter category of race law includes the 2002 amendments to the 1941 Merchandise Marks Act and the 2003 amendments to the 1936 Insolvency Act.

The present extent of the IRR’s research shows the democratic-era year 1998 as representing the highest number of race legislation, at 20. The top four are rounded out by 2000 (at 17), 1976 (at 9), and 2001 (at 8). Seven items of race legislation are found in each of the years 1957, 1963, 1968, 1969, 1997, 2002, and 2008.

These numbers will change, particularly as additional race legislation from the pre-democratic era is discovered. The Index represents a work in progress.

Says Van Staden: ‘Clearly race law is not just a numbers game: some standalone racial Acts of Parliament dating to before 1994 were more severe and harmful than all the race laws since 1994 combined. It is nonetheless clear, in light of the multiple democratic-era years at the top end of the Index, that much work is yet to be done to deracialise South African law.’

The Index currently utilises four race law statuses: ‘Racial’, ‘Deracialised’, ‘Racialised’, and ‘Ancillary’. ‘Racial’ laws are those that were originally, to the best of our knowledge, adopted as race laws. ‘Deracialised’ laws are racial laws that have since adoption had their racial aspects removed. ‘Racialised’ laws are laws that were adopted as non-racial laws, but which have since been made racial.

The line between whether a law is racial, or simply supportive of racial law, is often blurred. The ‘Ancillary’ status therefore serves two purposes:

• Indicating laws that are racial at a distance. The text of these laws themselves is not strictly racial, but the law is necessary for other racial laws to operate effectively (it is upstream from those laws), or the law requires other racial laws to operate effectively itself (it is downstream from those laws); or
• Indicating laws that are arguably racial, but might not be. These are included as it is likely that a law which is not on the face of it non-racial, is racial.

It is expected that these categories will be refined in the future as our understanding of specific legislation develops.

Amendment Acts, as a general rule, are discounted from the Index, unless they contain free-standing provisions, i.e., provisions that do not insert, revise, or repeal provisions in other legislation.

Says Van Staden: ‘The Index of Race Law will always be a moving target given the sheer number of variables. For instance, some laws are repealed more than once, and others are adopted non-racially but later amended to be racial, and vice-versa.’

Van Staden adds, however: ‘We are nonetheless quite confident that the absolute number of race legislation will not decrease from what we have now:

• 313 Acts of Parliament in total since 1910,
• 197 before 1994, and
• 116 after 1994 inclusive.’

While at present the Index of Race Law comprises a simple list, the project will grow over phases.

In 2023, a categorisation system for race laws will be introduced, which will indicate precisely which provisions in those laws are of a racial character and why they are regarded as such, and how they link to other race laws.

Additionally, the project will analyse the coded language and terminology of race law. This refers to how lawmakers have chosen to describe their racial enterprise over the years.
These are only some of the features that the public can expect from the Index of Race Law in the future.

The raw data available on the Index is intended to be objective, and to be a resource for all. As such, the Index itself does no more than record legislated instances of racialism. Where the IRR provides analysis, however, it will be from the perspective of non-racialism.

Members of the public who are aware of omissions or corrections are invited to submit them via the contact form on the website.

Statement issued by Martin van Staden, Deputy Head of Policy Research, IRR, 1 December 2022