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Anton Harber’s downplaying of modern-day South African race law is naïve

25 Mar 2025

If a law contains a direct, indirect, explicit or implicit operationalisation of a legal subject’s race, ethnicity or skin colour, it is included in the Institute of Race Relations’ Index of Race Law

Anton Harber (“It’s grossly dishonest to claim South Africa has more race laws than ever before”, Daily Maverick, 19 March 2025) is not the first person to make the basic error of assessing public policy based on his feelings about the intentions behind the law, instead of rational inquiry.

On the strength of a vibes-analysis of only eight laws included in the Institute of Race Relations (IRR)’s Index of Race Law, Harber concludes that “the claim that there are 142 active race laws is a serious distortion”.

Harber acknowledges the racial character of virtually every law he considers, but dismisses its classification as a race law because he feels that the racialised statute has a good “redress” aura about it.

As far as the index is concerned, however, laws are assessed for what they say. If a law contains a direct, indirect, explicit or implicit operationalisation of a legal subject’s race, ethnicity or skin colour, it is included.

‘Dormant and irrelevant’

To Harber, the 1921 Bethelsdorp Settlement Act is “perhaps the most ludicrous inclusion” on the index because it is “long dormant and irrelevant”.

It is telling that he construes the inclusion of this racial Act in a race law index as “ludicrous”, but Parliament’s failure to formally repeal this segregationist legacy law, despite the Law Reform Commission’s decade-old recommendation, is perfectly acceptable.

Simply, Harber’s feelings about the Act do not make it any less of a race law, nor does it extinguish the fact that Parliament has not yet repealed it.

Most irking, however, is that after Harber asked me via email why the Lotteries Act was included in the index, I replied that “sections 13A(1) and 13A(2)(d), read together” are the reason.

Rather than quoting these provisions, he quotes section 13(2)(b)(iii), which requires licence applicants to show commitment to empowerment.

Harber actively omitted the triggering provisions and relied on a totally different one that suits his narrative.

So why is the Lotteries Act racial?

The Act empowers government to licence a person, other than an organ of state, to conduct the National Lottery. Section 13(A)(1) empowers government to decide “on justifiable grounds” to rather not licence a person to conduct the lottery, but rather choose to licence an organ of state.

Section 13A(2)(d), then, specifies one of these “justifiable grounds” as “the need to comply with the legislative framework for the promotion of broad-based black economic empowerment and transformation”.

It is, clearly, a race law.

Harber then goes on to claim that laws are included because they prohibit racial discrimination.

Yet, the index’s methodology page clearly states that the “index excludes anti-discrimination laws that prohibit discrimination based on race”. Mere anti-discrimination measures are not found in the index – but any law that ostensibly prohibits racial discrimination, only to itself discriminate (like the Equality and Labour Relations Acts), is not rote anti-discrimination law.

‘Remiss’ to not record melanin content

Then Harber says the government would be “remiss” to not record the skin colour of property owners a la the new changes to the Deeds Registries Act.

This is what it has come to: a failure by the state to perceive its legal subjects by the melanin content in their skins would be “remiss”.

Sentiments like these are the sign of a sick discourse, manifested in the fact that every word of Harber’s attempted rebuttal to the inclusion of the 2024 Deeds Registries Amendment Act can be applied to the inclusion of the 1950 Population Registration Act.

Taken in isolation – as Harber does with the 2024 Act – “there is no suggestion that the [1950] law is discriminatory in any way” because it relates to “mere” classification.

Of course, the Population Registration Act was a race law, and its provisions were not legally isolated. Similarly, the Deeds Registries Amendment Act’s provisions will not be legally isolated – the records of racial ownership will be weaponised for redistribution purposes sometime in the future.

Nonetheless, even in isolation, the provisions qualify as racial.

Pencil-tests over merit

To Harber, laws that require racial pencil-testing to “promote inclusivity and representivity” should not be regarded as race laws. Laws that compel ministers – paid by non-racial tax rands – to appoint civil servants in part based on the colour of their skins, he says, have no place in an index that records race in law.

Agreeing with the vibes and intentions of, among others, the Institute for Drug-Free Sport Act, National Libraries Act, and Weather Services Act, does not alone render them non-racial, however.

And believing that 31 years after the end of apartheid, black South Africans still need laws that diminish meritocratic considerations so that they can have representation in government bodies, is simply absurd. Melanin content is not a good qualification. The fear that in the absence of these laws, white men will still dominate state boards and committees in 2025 is beyond the pale.

Harber’s attempt to downplay modern-day race law with the claim that South Africa has “self-identification” when it comes to racial classification is, finally, very naïve.

While it is true that a plainly white person can check the “black” or “African” box on a form, to suppose that this would simply be accepted by the pencil-testers at the Department of Trade and Industry and their colleagues is laughable. So-called “malicious compliance” with race laws has long been on the state’s radar and is even gradually changing the legislative agenda.

Constructive engagement

From the outset, the IRR has had an open-door policy for the public and interested parties to report any inaccuracies and errors that might be found in the index. Thus far, the only people who have taken a constructive interest in doing so have been individuals noting that some pre-1994 laws were missing, and those have since been included.

When we get to the post-1994 dispensation, however, there has almost exclusively been screeching and whining as attempted “rebuttals”. The irony is that the index cannot be rebutted by this crowd, because those who are most vocal about how ostensibly inaccurate it is tend to be the same people who argue the loudest that South Africa needs an intensely racialised statutory environment.

Modern ‘fact-checking’

What Harber has done was to turn an uneasy feeling in his gut into a Daily Maverick hit piece. His was a “feel-check” against the Index of Race Law, not a fact-check.

Unfortunately, this is the reality of modern fact-checking in general.

With all the “fact-checking” that has occurred in South Africa over the past three months specifically, it has all come down to the following:

We cannot really dispute the facts and reality of what is being claimed – about property confiscation and race laws – but we really do not like the feeling it causes us, and therefore we must label it as “misinformation” or “disinformation” or otherwise “misleading”.

What the cheerleaders for the status quo end up submitting, by implication, is that there are no race laws in South Africa, but if we were to take race out of our law, that would be improper or even unjust. Quite the paradoxical approach, yet now so common in the discourse.

Simply, the modern-day pencil-testers and racialists want to have their cake and eat it too. They want both the benefits of appearing superficially “non-racial”, and the benefits of substantively countenancing skin colour and melanin content as credible proxies for disadvantage.

‘Right-wing’ non-racialism

That Harber can so casually construe the IRR’s 96-year-old liberal non-racialism as “an ideological rejection of inclusiveness, representivity, anti-discrimination and any attempt at redress of South Africa’s racial and gender history” shows just how euphemistic South Africa’s public dialogue has become.

If non-racial liberalism is now “right-wing”, so be it. Whether on the left or the right, liberalism will always be opposed to those who seek to sacrifice individual dignity and freedom at the altar of statist social engineering.

Harber’s obfuscation also reveals his own unease with race laws, however.

The index records laws for what they are, whatever the irrelevant intentions behind them.

Had Harber not been uneasy with racialised law, he would, with full-throated conviction, simply have accepted – celebrated – the 117-odd race laws that the South African Parliament has adopted since 1994.

The best way to defeat the unease Harber and others are feeling at the moment, is for Parliament to adopt the IRR’s No More Race Laws Bill and render the law – our common heritage – fully deracialised. Then race law will be, as it should, only a matter of historical interest. DM

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