Frequently Asked Questions
The racial categories of the Population Registration Act continue by convention under South African race law today, comprehending blacks, whites, coloureds, and Indians/Asians. Because the Act was repealed in 1991 and not replaced, however, the system relies upon the self-classification of the legal subject.
Another popular classification is to simply divide South Africans between whites and blacks, with coloureds and Indians/Asians being regarded as blacks (as contemplated in the Employment Equity Act), similarly to how diplomats and trade partners from East Asia were designated as honorary whites on occasion during the previous dispensation.
There are two mutually exclusive answers to this question.
If one has regard to the text of the Constitution, race law is unequivocally unconstitutional and invalid, but for three provisions in the Constitution that allow for affirmative action in appointments to the judiciary, the public service, and Chapter 9 commissions. The Constitution does not allow – in fact, it clearly prohibits – racial social engineering in private society.
If, however, one has regard to the judgments of South Africa’s superior courts, race law is constitutional and valid. The courts have ignored and misconstrued those provisions in the Constitution that make racial social engineering unlawful, such as section 1(b) of the Constitution which entrenches non-racialism as a foundational principle of constitutional law, and section 9(2) which obliges government to bring about substantive legal equality.
The Race Law initiative treats race law as a distinct area of law in South Africa.
This area is distinct, rather than simply being a collection of the ‘racial aspects’ of property law, constitutional law, administrative law, and labour law, etc., because race-in-law is an aberration that is quite out of sync with South Africa’s common legal heritage.
In this respect, for instance, racial parts of the Preferential Procurement Policy Framework Act are not regarded as an ordinary manifestation of the law of procurement, but rather a manifestation of race law. Racial parts of the Employment Equity Act, similarly, are not an ordinary part of labour law, but race law.
Treating race law as separate from the various other recognised fields of law – as was done during the pre-democratic era – is a necessary exercise in the preservation of the integrity and respectability of the law. This is particularly true for the common law, which knows no distinction based on skin colour.
Many legal thinkers during the pre-democratic era did not regard the Population Registration Act, for example, as a true part of the law of persons. Textbook authors from that era tended to consider race laws as appendages to their discussions of real law. The Race Law initiative takes its cue from this tradition.
See the Methodology page.
Race Law utilises paid subscription services to obtain access to full-text digital copies of race laws, in particular those dating from before 1994. As such, the copies were compiled by for-profit enterprises and can therefore not be made freely available.
Copies of race laws from whatever era should nonetheless be obtainable from the Government Printing Works.
Additionally, legislation and regulations are rarely found in a single document. Acts of Parliament are regularly amended by Amendment Acts, as are regulations. As such, the current form of an Act of Parliament is often found across several documents.
The Race Law initiative will, however, in time provide extracts from the relevant laws that clarify why those laws were deemed to be of a ‘racial’ character.