How is it possible for so many people to give legal sanction to the apartheid categories reproduced in all official employment and transformation statistics? These categories are unambiguously rejected in the Employment Equity Act. Consequently, the SA Human Rights Commission has no need to investigate ‘the official use of apartheid-era racial categories’, if its investigation is guided by law.
Such is the depth of our despair that we are blind to blossoms of hope. We have thus failed to celebrate two recent events or even properly recognise the encouragement to which they speak. They continue grabbing the headlines, but we who never need an excuse to party are made deaf to their calls by our gloom, doom and fears made even louder by Covid-19.
The fear of overt racial violence is ever present. A racist advertisement for a hair shampoo, initially seen by a tiny number, became a national issue, with many shops in various parts of the country closing their doors for fear of violence. Virtually unknown Senekal, where both hatred and fear of white people seem to have been involved in a particularly gruesome murder of a farm manager, almost became the long-dreaded spark needed for a racial conflagration. But largely unacknowledged sanity prevailed. Not so much because of the peacemakers who were quick to emerge, but rather because the would-be combatants – the EFF and the “Boers” – both failed to attract sufficient troops for the intended showdown.
The second cause for good cheer has been the widespread and mainly sympathetic response to the teacher who gave his race as both coloured and African in separate job applications. The authorities initially charged Glen Snyman with fraud, but then withdrew the charge. The encouraging consequence of this event has been a significant public recognition of the need to question our continued embrace of the racial categories that made apartheid the polecat of the world.
Even the SA Human Rights Commission (SAHRC) is involved in investigating our continued use of these once-hated apartheid identities. As a chapter 9 institution created by our Constitution, the reasons for its involvement merit repeating:
“… The Commission … will seek to establish whether the official use of apartheid-era racial categories leads to human rights violations. …The South African government uses a system of racial self-classification for purposes of gathering data for the national census. However, at the same time, government uses apartheid-era racial categorisations to pursue and measure redress of unfair discrimination, through special measures aimed at achieving greater substantive equality.
“The Commission acknowledges that special measures … are required in various socioeconomic spheres, including education, housing and land redistribution, in order to achieve social justice.
“However, special measures should be flexible enough to cater for evolving societal nuances as South Africa pursues the transformative constitutional objectives of equality, human dignity and freedom. A delicate balance therefore falls to be struck between the need to promote human dignity by recognising the importance of self-identifying, while simultaneously developing and implementing special measures holistically to achieve substantive equality.”
Daily Maverick has already published two articles on the subject. Both are helpful in drawing attention to important aspects of the controversy. In the first, David Masondo, South Africa’s Deputy Minister of Finance, having drawn attention to the case of the teacher, writes:
“This is one of the indicators of widening chasms between the non-racial aspirations espoused in the Constitution and the continued reality of racialised colonial, class and gender inequalities. Increasingly, these raise an important question of how we should build a non-racial South Africa, in which being an African will not be defined by skin colour. … Our aspirational definition of who is an African cannot be reduced to race or ethnicity because it would be tantamount to the colonial racist classification that we seek to correct. Identifying Africans in racial terms excludes white South Africans who have never known any other country except South Africa.”
The second article, by Thamsanqa Malusi, extends this common theme:
“Anyone born in Africa has the right to be called African, but legal categories are needed for redress.”
Such expressed readiness to move beyond the apartheid categories that still dominate our lives is reason for rejoicing. That it is so unexpected in our heavily racialised and divided country adds to the optimism of the event.
Yet, at the same time, I must allow a sense of exasperation: how is it possible for so many people to give legal sanction to the apartheid categories reproduced in all official employment and transformation statistics? These categories are unambiguously rejected in the Employment Equity Act (EEA) of 1998. The terms “African”, “coloured” and “Indian” occur only once in the EEA and then only when defining “black people”. This is to say, they appear only in the announcement of their abolition. The EEA explicitly recognises only “black people” as a generic category.
The racialisation of gender that is similarly reproduced in all official statistics is equally not to be found in the EEA. African, coloured, Indian and white women found in all statistics are categories entirely absent from the act. The EEA recognises only “women” as a designated group needing the equity protections and support of the act.
This means that the SAHRC has no need to investigate “the official use of apartheid-era racial categories” if its investigation is guided by law. What does need long overdue investigation is the flagrant abuse of the EEA by all the agencies expressly charged with its implementation. This is to say, how and why “apartheid-era racial categories” ever came to be used “officially”, even though extra-legally, needs urgent answers.
The SAHRC’s investigation must extend to why the Employment Equity Commission – which was established by the EEA to give effect to the act – has instead given legitimacy to apartheid categories that have been imposed on the EEA and done so without any parliamentary authority or even acknowledgment of what has been done. This investigation would also need to find out why successive ministers of labour have tolerated a major breach of an act that falls under their watch. Ultimately, we need to know why Parliament has for more than 20 years accepted annual reports from the Employment Equity Commission that are in breach of the EEA.
It is not the first time I say that: As the ANC parliamentary researcher attached to both the ANC’s Labour Study Group and to Parliament’s Labour Portfolio Committee, I was privy to what happened to the Equity Employment Bill during its parliamentary passage. I can therefore attest to the heated discussions both within the study group and the portfolio committee.
The definitions of both the “Black” and “Woman Designated Groups” were matters of huge controversy. Despite both internal and external pressures – intense pressures, to be sure – the ANC’s principle-led position prevailed: there was to be no reproduction of the hated apartheid “racial” categories. There was to be no hierarchy of race-based gender oppressions. And there was to be no reference to tribes in employment equity, which was an initial IFP proposal.
Why the ANC abandoned its principled position almost before the act had even been promulgated is another area in need of urgent investigation. This investigation must also cover the ANC’s alliance partners, the SACP and especially Cosatu, because, during the 1980s and 1990s, Cosatu refused to recognise the official forms that used the identical racial categories smuggled into post-1994 statistics.
I have offered my own answers to these matters in two previously published Daily Maverick op-eds (here and here). The SAHRC is invited to consider these articles as part of its investigations, but the public has a right to expect the SAHRC to provide its own explanations of this unauthorised, extra-legal use of apartheid categories that have done so much to perpetuate the divisiveness of our racialised thinking. It is appropriate that the SAHRC does this because the apartheid categories are so explicitly antithetical to the non-racialism that is a foremost provision of our Constitution that the SAHRC is mandated to safeguard and promote.
Non-racialism, it must be emphasised, does not mean a denial of, or distraction from, the gross inequalities that disfigure our society. Indeed, the disfigurement is considerably worse than in 1994. The link between race and inequality is a source of much confusion. The inequalities of colonial and apartheid South Africa were indeed predicated on ruthless (mainly) African exploitation as the basis for white privilege. After 1994, however, the endurance of African poverty no less than white wealth is mainly the result of the natural reproduction of a capitalist society that produces poverty as a by-product of wealth. There is nothing remotely unique to South Africa about this. Capitalism (normally) produces and reproduces inequality wherever it exists worldwide.
South African poverty has retained its “black face” only because of demographics. The working class (which includes the unemployed and the others excluded from the main economy) is unavoidably African because 80% of the population is African. This reality will remain unchanged for as long as we remain a class-divided society. The retention of the apartheid categories thus guarantees permanent evidence of the failure of “transformation” and, hence, the need for still more and enhanced BEE and affirmative action. The African elite do well on the back of African poverty and natural class reproduction.
But at what cost to everyone else! At what cost to social cohesion? At what cost to a society in need of being at peace with itself, even if only relatively?
All of us being just African, which is the deputy finance minister’s wish, and which is in accordance with our Constitution’s founding principles, means the end of the current form of affirmative action. A new form of affirmative action is an imperative, however. The SAHRC calls for “implementing special measures holistically to achieve substantive equality”. These “special measures” ought to be reparations for the many rather than the few. This restorative justice should begin with the fact that South Africa was built on cheap black labour.
Even before Covid-19, official statistics tell us that half of the working population lucky enough to have any employment receive less than living wages. The first of a different affirmative action should therefore be a living wage for all. (Not the national minimum wage that even the government says is far from a living wage.)
A proper education was denied to all “non-whites”, especially Africans. What action could be more affirming – and “wholistic” – than a proper education for all and in schools befitting the 21st century and in the required numbers? The same goes for housing. And health. Building schools, houses, hospitals, a proper transport system built around trains and buses – these and the many other physical absences of poverty mean jobs in their millions. “Substantive equality” is meaningless without proper jobs.
This long-delayed but equitable affirmative action doesn’t come cheap. But the cost of an elite-driven and quota-fixated affirmative action, and, especially, Black Elite Empowerment, is gigantic. It’s never been properly costed probably because the answer would be explosive. And this excludes all the costs of what we call “State Capture”.
Thamsanqa Malusi, who also wants all of us to be Africans, says legal categories are needed for redress. What he doesn’t seem to ask is: redress for whom? If it’s most South Africans and most certainly all poor and unemployed South Africans, the use of the current categories do nothing to prevent the permanence of their poverty.
Ultimately, the point about finally burying the demons of apartheid is that it allows us to tackle the real problems of poverty amidst plenty. The black majority have still to taste the (economic) fruits of democracy. Addressing the needs of the black poor rather than the black rich is long overdue.
If this sounds utopian it is only a measure of how far backwards we’ve come since 1994. The ANC fought the 1994 election based on the Reconstruction and Development Programme. Our challenge is its resurrection and updating.
Rather than opening the vaults to wealth for what can never be more than a small number in terms of current policy, is the need to tackle the appalling reality of mass poverty. Moreover, we can do this from the most positive of positions: we are a rich country endowed with much more than our fair share of natural wealth, and, still further, we have the most developed economy in Africa as our launch pad. What better start could there be for us?
Our dreaming need not be fanciful. This is our comfort, our reason for wanting to dance. DM