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Anyone born in Africa has the right to be called African, but legal categories are needed for redress

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Thamsanqa ‘Thami’ Malusi is an admitted attorney with special interest in human rights, constitutional law, land reform and general litigation. He completed his LL.B. at the University of Cape Town in 2014, and a Bachelor of Social Science degree in political and legal studies from the same institution in 2012. He was also awarded an LL.M from the University of California, Los Angeles in 2020. He has worked as a litigation attorney both in South Africa and the United States. He also clerked at the Constitutional Court for Justice Mhlantla.

There is no invisible hand that will level the playing field between white people and other racial groups in South Africa, hence the desirability of race-conscious redress measures. Colour blindness, which is the elimination of racial classifications and pretences of a post-racial society, will only act to reproduce the existing patterns of inequality which favour whiteness.

On 14 October 2020, I woke to a storm of articles and social commentaries regarding the story of Glen Snyman, a primary school teacher in the Western Cape facing a fraud indictment for claiming to be “African” in his CV when he applied for a principal’s job back in 2017 (which he did not get) even though in his official records he was classified as “coloured”.

After catching wind of Snyman’s story, the Western Cape MEC for Education, Debbie Schäfer, intervened and the charges against Snyman were dropped on 15 October. 

In a press statement, Schäfer registered her disappointment with the charges and noted that she was “shocked to discover that [her] department is apparently charging someone because of how they choose to classify themselves”. 

She went on to add that “one of the many evils of apartheid was the classification of people by their so-called race. This was what many people have fought to rid our country of.”

As it turns out, Snyman has long identified as “African” even though he is officially a coloured man. His reason for identifying as African can be traced to his activism as a longstanding critic of racial classification in South Africa, which culminated in his formation of “People Against Race Classification”, a civil rights activist group set up to “oppose the official referencing and classification of the South African population in terms of: ‘Black’, ‘Coloured’, ‘Indian’ and ‘White’”. 

The group was founded in 2010 “to fight, terminate… any form of race classification”. Implicit in the call for termination of racial classifications is a normative appeal for a post-racial society, wherein, for all intents and purposes, all South Africans are treated the same, regardless of race.

In this case, Snyman rejected his official classification as a coloured man and asserted his claim as an “African”. Incidentally, this assertion happened in an affirmative action context, and more specifically, an employment equity context where Snyman was applying for a job as a principal, and race was considered as a factor in the application process pursuant to the Employment Equity Act of 1998. 

The employment equity regime relates to a body of law which was passed to, inter alia, redress the employment disparities created by apartheid and other discriminatory laws and practices.

It is an historical fact that employment-related discrimination has always had a disparate impact on black people and women in particular. 

There is no invisible hand that will level the playing field between whites and other racial groups in South Africa, hence the desirability of race-conscious redress measures. Colour blindness, which is the elimination of racial classifications and pretences of a post-racial society, will only act to reproduce the existing patterns of inequality which favour whiteness.

Colonial and apartheid South Africa was built on the exploitation of black labour; black women were confined in the homelands to work whatever land was left after dispossession by white invaders, while their husbands were forced through measures like the “hut tax” to work under harsh conditions earning pittances in the gold and diamond mines in Johannesburg and Kimberley. 

To pacify other people of colour, sow racial division and maintain white privilege, the apartheid regime not only favoured whiteness (both formally and informally), it also exploited differences between people of colour through favouring coloureds and Indians over Africans.

It is against this historical backdrop that laws such as the Employment Equity Act of 1998 and related codes of good practices were passed by the new South African Parliament from 1994 on; that is, to redress the legacy of historical racial discrimination and ensure that suitably qualified people from designated groups have equal employment opportunities. 

Accordingly, Snyman’s application for the principal position would have been looked at “slightly” more favourably with him identifying as “African” compared with if he had identified as “coloured”. In identifying as “African” in his application, Snyman essentially put himself in a position to benefit from redress measures not intended for his benefit as a coloured man.

There is a distinction to be drawn between a claim to be an “African” for redress or affirmative action purposes and a claim to be an “African” (or South African) to assert one’s belonging in Africa and/or South Africa.

In apartheid South Africa, the term “African”, and its concomitant discrimination, was used to classify black or Bantu people. Coloured people, which in the main was a term used to classify people of mixed race and their descendants, were a different racial group, similar to Indians or white/Caucasians. 

These classifications have remained in the new South Africa to serve a number of functions, one of which is to help us define designated groups for purposes of redressing historical discrimination.

In the affirmative action context, the classification “African” therefore means black/Bantu people and is utilised to address the unique forms of discrimination endured by the group during colonial and apartheid South Africa. Similarly, the “coloured”, “Indian” and “white” classifications in the affirmative action context are used to classify these racial groups and trace their relative historical discrimination (or lack thereof) in order to redress the same.

On the contrary, the classification of an “African” (or “South African”) for purposes of asserting one’s belonging is (or ought to be) far more inclusive than “African” in the affirmative action context. 

For purposes of asserting one’s belonging, a person can be “African” on a number of grounds, including birth, naturalisation and/or lineage. The descendants of the Dutch merchants (and would-be colonisers) who landed in the Cape in 1652 have as legitimate a claim to being South African or “African” in modern-day South Africa as any black/Bantu South African – to exclude whites from redress measures as beneficiaries of apartheid-facilitated discrimination is not to deny their claim to being South African or African. By extension, to treat Snyman differently as a coloured man to “Africans” for redress purposes does not deny him his claim to being African.

With that said, it could be argued that the relative conditions of black and coloured South Africans on average are not materially different, and therefore policies which treat black people favourably to coloured people in modern-day South Africa cannot be justified. 

For redress purposes, this is an argument worth engaging; notably, affirmative action as envisaged in our Constitution is a temporary measure aimed at facilitating substantive equality and to bridge disparities created by historical discrimination. Where the relative position of black and coloured people is substantively similar, our Constitution demands equal treatment between the groups.

On the contrary, no serious person can argue that the relative condition of white South Africans is similar to that of other racial groups in South Africa. As beneficiaries of centuries’ long exploitation of black, coloured and Indian people, whites remain far more privileged in South Africa by comparison.  

There is no invisible hand that will level the playing field between whites and other racial groups in South Africa, hence the desirability of race-conscious redress measures. Colour blindness, which is the elimination of racial classifications and pretences of a post-racial society, will only act to reproduce the existing patterns of inequality which favour whiteness.

Racial classifications in modern-day South Africa owe their origin to our racist colonial/apartheid history. It therefore makes perfect sense for someone like Snyman to want to dissociate from these classifications. 

However, in South Africa, where one race remains significantly advantaged at the expense of others – economically, socially and otherwise – as a result of the legacy of racist enactments such as the Native Land Act of 1913, the historical definitions of race responsible for the racial inequalities of today are essential to the undoing of these inequalities.

Rightfully, we may be critical of the use of apartheid racial classifications in a democratic South Africa, but the solution to racial inequality begins with the recognition of the role these categories continue to play in reproducing modern-day inequality. DM

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Comments - Please in order to comment.

  • Miles Japhet says:

    We are not all born equal, not even in the same families and herein lies the fundamental error in academic thinking around inequality, regardless of race colour or creed.
    Social engineering, however much it may be justified, has never and will never work, for it is an artificial construct. We can strive towards removing as many artificial barriers to an individual improving their quality of life but in the end it is up to the individual to take the initiative.
    The ongoing obsession with race and backward looking reasons for a persons’ current state, simply provides a scapegoat for families not to adopt long term self improvement strategies.
    We cannot change the dark past of our country but we can adopt proven policies that will work in the long run. Education, education and other supportive social services underpinning the promotion of a culture of hard work and initiative. Not seeing any of that here sadly !!
    Robbing the rich to pay the poor has always made everyone worse off – there are no short cuts.
    How about villages organizing themselves to dig a well and contour furrows as a start to self reliance rather than trashing the local school because government has failed to deliver water, for example?

    • David Turner says:

      Well said Miles!!! To expand on your first sentence, as I think that lies at the heart of the mistake in the thinking of most South Africans.
      “We are equal in VALUE, but we are not all equal in ABILITY.”
      For example, the Olympics 100m mens sprint final usually only has one or two white athletes out of twelve or so, and there’s nothing wrong with that and it has nothing to do with the value of either group.
      People who are always playing the race card are guilty of promoting bigotry on a much wider scale.

  • Anton van Niekerk says:

    “Snyman has long identified as “African” even though he is officially a coloured man.” In the absence of an official race classification, how can this be true?

  • Johan Buys says:

    No! Snyman cannot be “officially” colored as we have no legal race definition. Ten advocates can argue for a year : in our law there is no race. Argue with ten silks for ten years you still lose : there is in no legal definition of african or white or black or colored or indian or asian. I am fine with redress based on being currently disadvantaged. So company X wants to put up a wind farm and sets aside a proportion of value for the local school feeding scheme. Don’t come and tell me they must put aside that proportion for a “black” person (defined how exactly in the cold hard glare of law?) instead. Make empowerment about uplifting the disadvantaged not about dishing out Masseratis. I wish this case was not withdrawn. It is after 25y time we sort this once and for all.

  • Wyndham Robartes says:

    The reason why white peoples are still “doing better” than their black counterparts simply boils down to one word – education. If you are illiterate/innumerate, you are going to be at the bottom of the pyramid (with few exceptions, e.g. cadres) – that’s the way the world works in 2020!!! Until the majority stops voting for the ANC ( 50% of pupils reaching matric, <40% literacy [able to understand the written word in their OWN LANGUAGE], NOTHING is going to change! We are part of the global 21st century, whether we like it or not, and the only realistic way to succeed in this environment, is through education, which WILL NOT happen whilst the corrupt, incompetent cadres keep the masses uneducated!

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