The Illusion of the Rainbow Nation: The Unconstitutionality of Racial Classification?

Abstract

In societies emerging from segregation or division based on the biological factors of race and/ or colour, the centrality (or lack thereof) of race and colour within those legal systems plays a critical role in the progression and transformation of such societies. South Africa is one such society where race was the dividing criterion which saw the population ‘be[ing] turned into races through social practices [during] apartheid….’1 The post-amble to South Africa’s Interim Constitution2 states that the document was to form a: [H]istoric bridge between the past of a deeply divided society…and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour [and] race…. Le Roux asserts that the late Didcott J in Azapo v The President of the Republic ofSouth Africa3 believed that the metaphor of this bridge ‘implied an absolute break between the old and the new’, a transformation that was meant to be achieved by the Truth and Reconciliation Commission (TRC).4 Established by section 2 of the Promotion of National Unity and Reconciliation Act5 (PNURA) the TRC was mandated with ‘promot[ing] national unity and reconciliation…which transcends the conflicts and divisions of the past ….’6 This, as it was envisioned, would facilitate the transition that the Republic was making [from parliamentary sovereignty] into ‘democratic constitutionalism’.7 However, the failing of the TRC in achieving this has not only been seen in scholarly articles to that effect, but also within the argument that the ‘new’ constitutional dispensation is nothing more than the continuation of the previous regime masked only with a different face.8 The retention of racial classification gives prima facie credence to this belief. Adopted into the legal system through the Populations Registration Act of 1950 (PRA), racial classification would thenceforth play a decisive role in the lived experiences of ordinary South Africans.9 The PRA would ‘establish race as a domain of knowledge independent of any particular training or expertise, based on the ordinary experience of racial difference, which ranked whiteness as its apex.’10 This lack of knowledge associated with racially classifying people has resulted in what has been coined the ‘common sense’ approach.11 This approach deems it common sense that one can automatically classify what race another belongs to without having any pre-existing knowledge on how to classify or what the blood lineage of the person being classified was. Initially the categories comprised of ‘White’, ‘Native’ and ‘Coloured’ (with Indians being deemed a subset of the latter)12 however, with the passage of time the categories now reflect as ‘White’, ‘Black’ (or ‘African’), and ‘Coloured’, with ‘Indian’ now being a separate category.13 There has also been the inclusion of the category of ‘Other’14 with ‘Asian’ making intermittent appearances. With the advent of the new constitutional dispensation which focused on achieving national unity and the reconstruction of society,15