Of classifications and sub-classifications: A response to Stone and Erasmus, and de Vos

Contemporary discussions of race and law in South Africa tend to focus on affirmative action or on the equality courts, as De Vos, and Stone and Erasmus do in this issue. More often than not such discussions approach the role of courts with a focus on how these institutions are deploying racial categories, seemingly at times eliding the role that those same courts continue to play in the production of race.¹ The North Gauteng High Court’s recent pronouncement, for example, that South Africans of Chinese descent are ‘black’,² reflects an explicitly constitutive position, which passes without comment. Future research might pay more attention to what courts are doing closer to the street level, as they seek to work with race classifications in a constitutional context. There it is perhaps the less explicit invocations of race that are more interesting and ultimately more powerful. That said, I think it is critical for those concerned with race and law to look beyond the courts in order to understand the institutional persistence of race. It is that point that I wish to briefly take further in this response.

There is no doubt that apartheid race classification remains deeply institutionalised in South Africa. In reading Pierre De Vos’ article in this issue, I was struck by the metaphor of the bridge. The idea that we are moving, or ‘transitioning’ as we are inclined to say in South Africa, from a past replete with odious laws, institutions and practices to something better. This is, after all, for better or worse, the basic premise of our transition: that we took much of the status quo as given and we crafted laws and policies that would move us to where we wanted to be. As De Vos puts it – only slightly tongue in cheek – we are moving ‘(f)rom a dark apartheid past (to) a bright human rights based future’. We have learnt along the way, however, that the future is often very uncertain and some of the bridges (or ‘transition mechanisms’ in technical jargon) decidedly shaky. Deborah Posel’s work (2001) provokes us to think about the social and material ubiquity of race in understanding its post-apartheid persistence. I would suggest that we need also to think more critically about the ways in which our institutions are infused with race thinking. In particular, I suggest here that we cannot talk about apartheid’s grand project of race classification, without also talking about its sub-classificatory project, which turned us into a statutorily constructed ‘country of minorities’.³ As it turns out, both projects have proven to be remarkably tenacious, but I think it is in looking at apartheid sub-classifications that we really see its institutional persistence.⁴

The legislative grandfather of any discussion about race classification is the infamous Population Registration Act, passed in 1950. Not only was it the first attempt at providing a general definition for each racial group, but it also provided that once a preliminary classification had been made, those racial groups could be further sub-classified.⁵ It is this further classification that is commonly ignored. The 1951 Bantu (subsequently Black) Authorities Act (BAA) took the classificatory experiment to even more absurd levels. It gave the President the power to delineate ‘tribes’ and establish ‘bantu authorities’ on a systematic basis as the building blocks of the Bantustan system.⁶ A return, so Dr Verwoerd said, to ‘the natural Native democracy’.⁷ Chief Albert Luthuli (1962:200) countered that:

The modes of government proposed are a caricature. They are neither democratic nor African. The Act makes our chiefs, quite straightforwardly and simply, into minor puppets and agents of the Big Dictator. They are answerable to him and to him only, never to their people. The whites have made a mockery of the type of rule we knew. Their attempts to substitute dictatorship for what they have efficiently destroyed do not deceive us.

Critically for our current purposes, the upshot of this Act was to create fixed tribal identities premised on race and tied into a defined territorial...