People Against Racial Classification Petition

Meeting report

The Chairperson noted that late in 2021 the Committee had received a unique petition for the removal of the word “Coloured” from all government forms, private institutions and from the Employment Equity Act. The Ministers were present to provide a response. The Committee was waiting for a submission from the South African Human Rights Commission. It had sent a letter requesting more time to make its submission.

People Against Racial Classification briefing
Mr Glen Snyman, a representative of People against Racial Classification (PARC) presented a petition on behalf of the organization for the removal of the “Coloured” from all government forms, private institutions and from the Employment Equity Act. The petition stated that the word "coloured" was confusing, derogatory, and racist. The use of the word also concealed the true historical identity of the Khoi and San people. The word should be removed from all important government documents and forms.

The petition also requested Parliament to review the race definitions of “African” and “Black” as defined by the Employment Equity Act. The EE Act defines “Black people” as a generic term which means Africans, Coloureds, and Indians. This definition created confusion.

Submission by Minister of Home Affairs
The Minister of Home Affairs, Dr Aaron Motsoaledi said that the government had previously used racial classification as a tool in state policy to control the population. Individuals were racially classified according to the Population Registration Act 30 of 1950 and other laws like the Prohibition of Mixed Marriages Act. Those were repealed in 1991. The Home Affairs Department would only mention the nationality and the concerns in the PARC petition did not pertain to the department.

Submission by Minister of Employment and labour
Minister Thulas Nxesi noted that the petitioners had alleged that racial classification by the South African government was unconstitutional and offensive to the coloured people. PARC said “Black people” in the Employment Equity Act of 1998 created confusion by defining black people to include African, coloureds and Indians and that every South African citizen was an African including the white and Chinese people. All South African citizens were African by virtue of being born on the continent. The coloured group were black and where part of the black people described the Employment Equity Act of 1998. It was however important not to lose sight of both the past and the present South African context. It was important to remind people that apartheid systematically discriminated against black people even though they constituted 90% of the population. The deep scars of the system were still visible in the society. It had left behind a legacy of inequality in both the labour market and the society.

The disparity in the distribution of jobs, occupations and income revealed the effects of the discrimination. The discrimination was also against women and those with disabilities. The disparities were reinforced by social practices and other factors such as lack of education, housing, transport, and medical care that perpetuated discrimination. This was the context of the Employment Equity Act and the eradication of unfair discrimination was not going to remedy the situation, but policies, programmes and other positive actions designed to readdress the past were crucial. The elimination of unfair discrimination and commitment to the implementation of affirmative action were mutually reinforcing processes required to achieve substantive equality to give effect to equality as enshrined in section 9 in the Constitution. To ensure substantive equality, it was fundamental that given South Africa’s painful discriminatory past, the Employment Equity Act was enacted to give effect to the fundamental human right to equality. The purpose was to achieve equity in the workplace by promoting equal opportunity and fair treatment through the elimination of unfair treatment. In implementing affirmative action to redress the disadvantages in employment, it was imperative that the Employment Equity Act be interpreted in compliance with the Constitution. The racial classifications outlined in the EEA were not unconstitutional, but they were the means to achieve substantive equality to redress the imbalances. In Minister of Finance and Others v Van Heerden, the Constitutional Court ruled that for a measure to be held as permissible and not discriminatory, it had to meet three standards: categories of persons that had been disadvantaged, it had to be designed to protect and advance such person and it had to promote the achievement of equality.

The Constitutional Court was clear that to address unfair discrimination and substantive equality, restitution measures of affirmative action measure inclusive of race classification that accompanied them, were integral components required to achieve the fundamental human rights. In recent times, the Constitutional Court judgement in February 2021 in the case of Solidarity v Minister of Labour dismissed the application for leave to appeal on the basis that there were no reasonable prospects of success because the affirmative action measures inclusive of race classification were constitutional. These were indispensable instruments to achieve equality and they were not unconstitutional. He agreed with the argument expressed by the South African Human Rights Commission in their response to the petitioners that the restitution measures and race classification contained in the EEA and in various policies were constitutional.

The Chairperson noted he had invited the Minister of Arts and Culture as the Ministry dealt with identity, heritage and culture. Unfortunately, the Minister had other commitments but they would likely have another meeting.

Submission by Koi San people
Chief Cornelius Kock stated it was sad that the word "coloured" was still being used in the democratic dispensation after many dialogues to abolish it. It was still evident that if people were of a certain pigment, they were more eligible for a position of employment. The abolishment of the word "coloured" had to be through public consultation because there were many who were proud of the name coloured. Many had formed a way of life around it and branded it and made a living out of it. since the commencement of the Traditional Koi San Leadership Act of 2019, Koi San was defined as Cape-Khoi, Griqua, Korana, San, or Nama people. All the mentioned groups had to apply for official recognition. Some of these groups had grouped themselves as coloured not knowing it was a derogatory term and a dog tag identity placed on them by the national government.

The classification in the Employment Equity Act perpetuated different weightings when it came to different opportunities. If the word "coloured" would be abolished the EEA would be subject to change. All South Africa citizens could not be called African if they were not born in African. They were to remain citizens but not Africans. It was premature to recognize other nationalities and settlers without correctly identifying ourselves first. To move forward they had to heal the past. Having a truth and reconciliation commission to educate those proud of being called coloured would ease its abolishment. Abolishing the world coloured was a must and would compel the change of documents in the public and private sector. He asked what would happen if they abolished the word "coloured" whom some held as an identity because they had no other identification, or they did not want another. What identity would fill that void? There was a need for a national debate as a strategy in fast tracking recognition of South African native communities and their identities.

Discussion
Mr K Motsamai (EFF, Gauteng) asked if the Koi San were benefitting from the government as other kingdoms that were identified as African.

Mr E Mthethwa (ANC, KZN) asked that besides abolishing the word "coloured" what else was the Committee to help with. Were they not proud it gave an indication of from where they came?

Mr E Mthethwa (ANC, KZN) said that there was nothing of moral equivalence to what had happened in the apartheid and what was happening in South Africa at that moment. They had made important strides to implement section 9 of the Constitution to achieve equality. It was disingenuous for people to think that if they used the word, it was in perpetuation of the old order. The government was not trying to do that; rather it was doing its best to deal with inequality. Therefore, that insinuation had to be corrected. He asked what did the petitioners want the Committee to do. He suggested that the issues were thrown into the public discourse and thoroughly consult the relevant authorities in these fields and solicit their views.

Ms C Visser (DA, North West) was inaudible and she would send a written question.

The Chairperson highlighted that PARC had also called for a national debate and that was welcomed. South Africans had different cultures but they were all united in diversity. He asked what exactly PARC wanted the Committee to do to help.

Mr Snyman replied that PARC wanted the Committee to rename the word "coloured" and then the race bloc. African was to change to black. Coloured was to be removed and "Other” to be included with the race blocs. They were to amend the Employment Equity Act race blocs.

The Chairperson asked PARC how it would deal with a significant part of the “coloured” community who still wanted to keep the term. Did Mr Snyman have the authority to speak on their behalf? Was it not an issue that required a debate and public education? It was more constructive to call for public engagement starting with people in that community on what they would want to be referred to as a people. Apartheid was a means to exclude the other races. The Ministers were correct that they were all equal before the law as South Africans. The classification that was there was intended to repair and to restore the dignity of all those abused. It was a progressive form of classification to deal with the balance. He was not negotiating that they wanted to change how they were referred to. He believed it was progress if the PARC started by engaging the coloured “community” to have their support.

Mr Snyman responded that he had been engaging the community for the past 12 years. However, who was going to call all coloureds together and facilitate the meetings and take a vote?

The Chairperson said he understood that this point of view and welcomed a national debate. The Committee was going to take the debate forward starting with the “coloured” community.

Home Affairs Minister Motsoaledi said the issue was of great importance but not relevant to the Ministry of Home Affairs because they had abolished it. It was relevant to the Ministry of Labour so the Ministry would take what the Committee would decide.

Labour Minister Nxesi said that they could not address imbalances without recognizing the race classifications with the whites at the top, coloureds, and Indians in the middle It was important to identify disadvantaged groups and rightful beneficiaries for restitution and affirmative measures. The classifications in the EEA were solely as an instrument to achieve substantive equality for all and not a device to reinforce an apartheid discriminatory system. Society would struggle to implement the affirmative action measures without this. He asked the petitioners to reconsider their request for the removal of race classification in the EEA. If not, it could approach the Constitutional Court to provide clarity on the matter. He accepted the idea of a national dialogue.

The Chairperson thanked all in attendance and PARC for its petition. He highlighted that it was a very important issue that talked to the past and the present hence the Committee had to prioritise it. The Committee accepted the proposal for a national debate, and they would try and find the best approach to ensure a constructive debate. The Committee was going to engage with national broadcaster, SABC, and others in the discussion. The meeting was adjourned.