SAHRC’s silence on racial classification a cause for concern – IRR

8 August 2024

What is a “black” person or a “white” person? How do you define these racial entities that many of our democracy’s laws are predicated on?

These are questions the Institute of Race Relations put to the South African Human Rights Commission (SAHRC) late last month as part of its broader campaign to question whether racial classification has any place in post-apartheid South Africa. Yet, despite a follow-up communication, we have received no response from the SAHRC.

The official use of racial classification was technically annulled when the Population Registration Act of 1950, the legislation which established and entrenched racial divisions in society, was repealed in 1991.

“Despite this, and to a much greater degree than our history would suggest is plausible, race remains a key element of many Acts of Parliament today,” says IRR Campaign Manager Makone Maja.

The IRR demonstrates this in its Index of Race Laws − a database of all legislation that relies on or incorporates racial classification, from Union in 1910 to the present day. The Index, which was last updated in October 2023, shows that 313 racial Acts were adopted between 1910 and 2023. Many of these were repealed leading up to and immediately after the fall of apartheid in 1994, and, by 1996, there were as few as 52 race laws on our books.

However, this number has nearly tripled since then, with 141 racialised pieces of legislation being either operative or active law.

Says Maja: “The democratic government pays lip service to non-racialism as a constitutional principle yet has doubled-down on racialisation at every turn.”

The SAHRC’s Second National Conference on Racism: Towards Social Cohesion, Non-racialism, and the Eradication of Racial Polarisation and Tension in 2021 purported to address “the issue racial classification”.

“It is not clear whether this was achieved,” says Maja. “The report alludes to the adverse psychological impact of ‘racial denialism’. While a few ideas can be deduced from these comments, it would be preferable for the SAHRC to provide clarity and advise the country of its stance on the continued dependence on racial classification in legislation, despite the constitutional commitment to non-racialism. Unfortunately, our requests for such clarity have been met with silence.”

For the past 30 years South African legislation has operated on the very basis of the apartheid institutions which democracy sought to demolish. Every remaining racial statute that is reinforced by the government is no more than the state running cover for these bigoted apartheid-created entities.

As a Section 9 institution, the SAHRC is uniquely and constitutionally mandated to adjudicate on such matters. Its silence on whether these artificially drawn divisions have a place in democracy is troubling.

Issued by Makone Maja, IRR Campaign Manager, 8 August 2024