ATCC220630: Report of the Select Committee on Petitions and Executive Undertakings on the hearing of the People against Race Classification Petition held on 24 February 2022, as adopted on 24 June 2022

NCOP Petitions and Executive Undertakings

REPORT OF THE SELECT COMMITTEE ON PETITIONS AND EXECUTIVE UNDERTAKINGS ON THE HEARING OF THE PEOPLE AGAINST RACE CLASSIFICATION PETITION HELD ON 24 FEBRUARY 2022, AS ADOPTED ON 24 JUNE 2022

BACKGROUND

The Select Committee on Petitions and Executive Undertakings (Committee), having considered the People Against Race Classification (PARC) Petition, referred to the Committee by the Chairperson of the National Council of Provinces (NCOP) on 22 November 2021, for its consideration and resolution, reports as follows:

The petitioner, Mr Glen Snyman, submitted a petition on behalf of the People Against Race Classification (PARC). The petitioner is calling for the removal of the word “Coloured” from all official government and private institutions’ documents. The petitioner alleges the following:

The use of race classification by the South African government is unconstitutional and offensive to the so called coloured people;
The word “Black people” as defined in the Employment Equity Act, 1998 [ No. 55 of 1998] (Act) creates confusion by defining “Black people” to include, African, Coloured and Indians, and;
Every South African citizen is an African, including White people and Chinese South Africans;

The petitioners seek the following relief:

To enact legislation that will abolish the use of the word “Coloured” from all official government and private institutions;
To amend the definition of “African” in the Act, to include Chinese and all people that live in and hold South African citizenship;
To amend the Act to include the definition of “Other race”. This is to make provision for those people that do not want to be race classified and
To facilitate a national debate on the naming and identification of South African citizens.

2. HEARING

On 24 February 2022, the Committee held a hearing on the petition via a virtual platform where the petitioner and relevant stakeholders were invited. The purpose was to afford the petitioner and relevant stakeholders with an opportunity to make first-hand oral submissions in relation to the subject matter of the petition.

The following Committee Members were in attendance:

2.1 Hon Z Mkiva, ANC, Eastern Cape (Chairperson);

2.2 Hon E M Mthethwa, ANC, KwaZulu-Natal;

2.3 Hon TSC Dodovu, ANC, Gauteng;

2.4 Hon N E Nkosi, ANC, Mpumalanga;

2.5 Hon C Visser, DA, North West;

2.6 Hon I M, Sileku, DA, Western Cape;

2.7 Hon K Motsamai, EFF, Gauteng; and

2.8 Hon Zandamela, EFF; Mpumalanga,

The following Committee officials were in attendance:

2.9 Mr N Mkhize, Committee Secretary;

2.10 Mr X Simelane; Committee Researcher/ Acting Content Advisor

2.11 Mrs N Fakier; Executive Secretary;

The following stakeholders appeared before the Committee:

2.12 Petitioner: Mr G Snyman; Hon A Motsoaledi-Minister of Home Affairs; Hon T Nxesi-Minister of Employment and Labour and Senior Cultural Chief C Kock-representative of the Abbaquar San Royal House.

SUBMISSIONS BY THE PETITIONER

The petitioner, Mr. Glen Arnold Snyman, submitted a petition on behalf of the People Against Race Classification (PARC), a community-based organization that is registered as Non-profit organization (NPO).

The petitioner is calling for the assistance of the NCOP, regarding the alleged failure by the Presidency and various Government Departments to implement the recommendations of the South Africa Human Rights Commission (SAHRC) pertaining to the Khoi-San people. The petitioner also wants the NCOP to review the use of the word ‘Coloured’ on all official government forms and also a review of race definitions as defined by the Employment Equity Act.

Specifically, the petitioner is calling for the removal of the word “Coloured” from all official government and private institutions’ documents. According to the petitioner:

The use of race classification by the South African government is unconstitutional and offensive to the so called coloured people;
The word “Black people” as defined in the Employment Equity Act, 1998 [ No. 55 of 1998] (Act) create confusion by defining “Black people” to include, African, Coloured and Indians, and;
Every South African citizen is an African, including White people and Chinese South Africans.

The Committee was made aware that these allegations seem to be also informed by some previous meetings between the petitioners and the SAHRC, which resulted in a report where the following recommendations were made;

The State, through the Presidency and the Department of Arts and Culture (DAC), must take steps on or before 31 March 2019 towards removal of the forceful categorisation of Khoi and San peoples as “Coloured”.
The Department of Cooperative Governance and Traditional Affairs (CoGTA), through the Minister, must ensure before 18 months of issuing of this report that official recognition of indigenous communities, through legislative and administrative processes, are equitable to the recognition of other traditional communities, and must not place an undue burden on Khoi and San communities desiring to receive official recognition from the State. In this regard, it is noted that “equitable” does not require the same treatment, but in noting the distinct context of the Khoi-San from other traditional communities, the department is required to meaningfully engage with the Khoi-San with a view of developing reasonable and practical procedures.
With regard to the above, and in line with Article 33 of the United Nations Declaration on the Rights of Indigenous Peoples, CoGTA must ensure that the membership criteria for the Khoi-San are determined in line with their customs and traditions.
The Department of Rural Development and Land Reform (DRDLR) together with the Office of the Presidency is required to take steps to expedite the process of restitution for indigenous communities, in light of the recognition of the centrality of access to land, traditional territories and natural resources for the fulfilment of other rights of the Khoi-San. The DRDLR is required to provide the Commission with a report within 12 months of this report being issued setting out such steps taken.
The DAC, together with other relevant departments, is required to develop legislative or policy measures aimed at ensuring that the intellectual property of the Khoi-San is adequately protected, which protection must extend to the use of products; images; logos; art; and stories, amongst other forms of cultural expression. The use of such property must be undertaken in consultation with indigenous communities, and must result in equitable benefit sharing. The DAC is required to provide the Commission with a report within 12 months of this report being issued setting out such steps taken.
The Department of Environmental Affairs (DEA) must assist Khoi-San communities in engaging with individuals or companies involved in the bioprospecting or bio trade of rooibos and honey bush with a view of entering into an equitable Benefit Sharing Agreement. The DEA is required to provide the Commission with a report within 12 months of this report being issued setting out such steps taken.
Specifically, with regard to the development of the National Khoi-San Heritage Route, the DAC must consult with the Khoi-San in the conceptualisation and implementation of this project, and must further collaborate with the Department of Tourism in developing the capacity and promoting the active involvement of indigenous communities. The DAC and Department of Tourism are required respectively to provide the Commission with a report within 12 months of this report being issued setting out such steps taken.
CoGTA and other relevant departments must immediately initiate broad public consultations, no later than 3 months of the issuing of this report, with indigenous communities with a view of addressing concerns over the composition and status of the National Khoi-San Council (“NKC”).
The DoJ&CD, together with the Department of Labour and other relevant departments should consider the development of special legislative and policy measures for the advancement of Khoi-San peoples, noting their historical discrimination and continued marginalisation. These measures may include the provision of training and capacity development initiatives; funding mechanisms; and employment practices, amongst others. The DoJ&CD and the Department of Labour are required respectively to provide the Commission with a report within 12 months of this report being issued setting out such steps taken.

Given the above background, the petitioners seek the following relief:

That Parliament orders the removal of the use of the word “Coloured” from all official forms of government, private institutions and the Employment Equity Act;
That Parliament enact legislation that will abolish the use of the word “Coloured” from all official government and private institutions;
That Parliament 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 creates confusion;
That Parliament amend the definition of “African” in the Act, to include Chinese and all people that live in and hold South African citizenship;
That Parliament amend the Act to include the definition of “Other race”. This is to make provision for those people that do not want to be race classified and
The facilitation of a national debate on the naming and identification of South African citizens.

The Committee was further made aware that the SAHRC recommendations mentioned in this brief are not exhaustive. An exhaustive list is found in the SAHRC report itself and it cuts across a number of government departments, including CoGTA, DAC, DRDLR and the DOJ & CD. However, the most relevant stakeholders for this petition is CoGTA, DAC and the Presidency because they were given specific tasks and timelines in the SAHRC recommendations. The petitioner further submitted that the Department of Labour and Employment and the SAHRC itself is relevant as it is the source of the recommendations and have had ongoing discussions with the petitioners.

SUBMISSIONS BY THE MINISTER OF HOME AFFAIRS

The Minister of Home Affairs briefly submitted 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. And the Committee was made aware that such laws were repealed in 1991. The Minister concluded that the issue was of great importance but not relevant to the Ministry of Home Affairs since they had abolished it. It was relevant to the Ministry of Labour.

SUBMISSIONS BY THE MINISTER OF EMPLOYMENT AND LABOUR

The Minister of Employment and Labour submitted that all South African citizens are African by virtue of being born and bred in the African continent. In the same vein, he acknowledges that the Coloured group are black and as a result, they are part of the black people as prescribed by the Employment Equity Act, 1998 (EEA). However, he indicated that we should not lose sight of both the past and the current South African context.

It is further submitted that Apartheid has left behind a legacy of inequalities in both the labour market and society as a whole. In the labour market, the disparity in the distribution of jobs, occupations and incomes, reveals the effects of discrimination against black people (Africans, Coloureds and Indians), women and people with disabilities.

The Minister acknowledged that these disparities are reinforced by the social practices and other factors outside the labour market, such as the lack of education, housing, medical care, transport and so forth, which perpetuated discrimination in employment against these previously disadvantaged groups.

Therefore, the elimination of unfair discrimination alone will not remedy this, but policies, programmes and other positive actions designed to redress the imbalances of the past are therefore crucial. In this regard, the prohibition of unfair discrimination and the commitment to the implementation of affirmative action measures are mutually reinforcing processes required to achieve “substantive equality” in order to give effect to the right to equality, as enshrined in section 9 of the Constitution.

The Minister argued that, in order to ensure substantive equality, it is fundamental that, given South Africa’s painful discriminatory past and inequalities, in particular amongst the previously disadvantaged groups, legislation geared towards the elimination of unfair discriminatory practices and promotion of equality are prioritized.

The Minister further argued that it is against this Constitutional backdrop that the EEA, was enacted to give effect to the fundamental human right to Equality as enshrined by Section 9(2) of the Constitution. And that the purpose of the EEA is therefore, to achieve equity in the workplace by:

promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination; and
implementing affirmative action measures to redress the disadvantages in employment experienced by designated groups, in order to ensure their equitable representation in all occupational categories and levels in the workforce.

The Minister informed that it is imperative that the EEA be interpreted in compliance with the Constitution so as to give effect to its purpose. In light of this context, he submitted that the racial classifications outlined in the EEA are not unconstitutional because they are critical means to achieve substantive equality to redress the imbalances of the past created by the unjust racially-driven Apartheid system, which still continue to plague the majority of our people even today.

The Minister further informed, that various Courts, including the Constitutional Court, have ruled that the implementation of affirmative action measures as enshrined in the EEA is not unconstitutional. This implies that the racial classifications stipulated in the EEA and its regulations to achieve the intended purpose of the EEA of achieving equality and promoting equal opportunities for all, irrespective of people’s race, gender and disability are not unconstitutional.

The Minister cited the Constitutional Court case of the Minister of Finance and Another vs Van Heerden 2004 (11) BCLR 1125 (CC) - the Constitutional Court ruled that for a measure to be upheld as being permissible and not discriminatory under section 9(2) of the Constitution, it must meet three standards: it must target persons or categories of persons who have been disadvantaged by unfair discrimination; it must be designed to protect and advance such persons or categories of persons; and it must promote the achievement of equality.

It is submitted that in this case, the Constitutional Court was clear that to address the issue of unfair discrimination and substantive equality, restitutionary measures or “affirmative action” measures, inclusive of the race classifications that accompany them, are integral components required to achieve the fundamental human right to equality.

The Minister further reported, that in a recent judgement of 3 February 2021, in the case of Solidarity Trade Union vs Minster of Labour CCT179/20, the Constitutional Court dismissed the application for leave to appeal filed by Solidarity on the basis that there were no reasonable prospects of success. It is significant to highlight that, in this case, the Solidarity Trade Union had lost a Labour Court case wherein they alleged that affirmative action measures, inclusive of the race classifications accompanying them as prescribed in the EEA were unconstitutional. It is again evident from this Constitutional judgement that both the affirmative action measures and accompanying race classifications as currently contained in the EEA are indispensable instruments to achieve equality and are not unconstitutional.

The Minister, concur with the arguments expressed by the SAHRC in their response to the petitioners that the restitutionary measures such as affirmative action measures and the race classifications contained in the EEA and utilised in the various South African government policies and programmes, fall within the ambit of the Constitution.

The Minister further argue that you cannot address the imbalances and the injustices of the past without recognising the fact that the Apartheid system was solely driven from a race hierarchy classification system, with whites being on top, coloureds and Indians in the middle; and Africans at the bottom.

The Minister indicated that in light of this context, it is important to identify who are the disadvantaged groups and the rightful beneficiaries of the restitutionary measures/ affirmative action measures. As such, the current race classifications contained in the EEA should be seen solely as a yardstick and an instrument critical to achieve substantive equality for all and not as a device to reinforce the Apartheid race discriminatory practices.

The Minister acknowledged that the government, private sector and society as a whole will continue to struggle with the implementation of the affirmative action measures as everyone seeks to redress the imbalances and the injustices of the past and at the same time, striving to uphold the aspirational goals and values of the Constitution.

The Minister concluded that the petitioners should reconsider their request for the removal of the race classifications in the EEA, if not, he advised that they have a right to approach the Constitutional Court to provide clarity on this matter.

SUBMISSIONS BY THE ABBAQUAR SAN ROYAL HOUSE

The Abbaquar San Royal House (ASRH), submitted that abolishing the word coloured will have to be through public consultation and dialogue. They argued that there are many who are even “Proudly coloured”, and that as much there is a stigma attached to it, some people have accepted that identity.

It was further submitted that there has since been commencement of (Traditional and Khoi-San Leadership Act, 2019 (Act No. 3 of 2019) with effect from 01 April 2021 as determined by the President under Proclamation No. 38, published in Government Gazette No. 43981 of 11 December 2020. In this Act “KHOISAN” is identified to be, Griqua, Cape-Khoi, Korana, Nama or SAN people, applications will open for the above to apply for official recognition. Some of these clans would have their name shown as XXXXXXX (Coloured).

The Committee was informed that KHOISAN people have been told that if you not white, you are black and known as such (according to employment act). This is classified as such in the employment act and carry different weightings in opportunity, so when abolishing the word coloured this would have to automatically be subject to change.

They further submitted that all South African citizens cannot be called African if they were not born in Africa. They become citizens by virtue of application to enter, by instruments in place, under the watchful eye of the Department of Home Affairs. Where foreign nationals (not only Chinese) apply for PR (Permanent Residence), they should remain as citizens and not Africans.

The Abbaquar Royal House believe that classifying people by pigmentation is not correct, but rather by DNA, many have German, Dutch, Xhosa, Zulu, Afrikaner ancestors because of colonisation and the fight against it, resulting in inter marrying into different cultures, but still operated in their own name, culture and right. The SAN people are not coloured people only but rather all south of the equator regardless of pigmentation, religion or language, informing that we are all brothers, cousins and family and have to come together in the spirit of Ubuntu.

In conclusion, the Abbaquar San Royal House believe that in order to move forward we have to heal the past. Having a commission such as Truth and Reconciliation Commission (TRC), would educate the generation that say they are proud of a race classification which was devastating. All south of the equator should be classified as South African Native (SAN) people.

Lastly, they submitted that abolishing the word coloured is a must and once done would automatically speak to change of all documents or applications in the public and private sector. But they also questioned the petitioner, what would happen if they abolish the word coloured whom some people hold on to and identity themselves with, if they don’t accept another (word/classification).

7. OBSERVATIONS AND KEY FINDINGS

The Committee made the following observations and key findings in relation to the various submissions made on the subject matter of the petition:

7.1 The petitioner is requesting 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.

7.2 Home Affairs Minister submitted that the issue was of great importance but not relevant to the Ministry of Home Affairs since they had abolished racial classification. Indicating that it was relevant to the Ministry of Labour.

7.3 Minister of Employment and Labour suggested that the petitioners should reconsider their request for the removal of race classification in the EEA. If not, they could approach the Constitutional Court to provide clarity on the matter. The Minister accepted the idea of a national dialogue.

7.4 Minister of Labour and Employment further reported, that various Courts, including the Constitutional Court, have ruled that the implementation of affirmative action measures as enshrined in the EEA is not unconstitutional.

7.5 The Abbaquar San Royal House submitted that abolishing the word coloured will have to be through public consultation and dialogue as there are many who are even “Proudly coloured”.

7.6 The United Nations Special Rapporteur on Indigenous Peoples of South Africa recognises that the San, the Nama, the Korana, the Griqua and the revivalist Cape Khoi are those indigenous Africans, among others in South Africa, who face discrimination and marginalisation.

8. RECOMMENDATIONS

Following extensive deliberations on the submissions made during the hearing on the petition, the Committee recommends as follows:

8.1 In its consideration of the subject matter of the petition, the Committee recommend a national debate as a strategy in fast tracking recognition of South African native communities and their identities.

The South African Human Rights Commission (SAHRC) be allowed a period of about six months to research the issues raised and report back to the House.

Further in its consideration of the subject matter of the petition, the Department of Labour, COGTA, DAC, DRDLR and the DoJ&CD, together should consider the development of special legislative and policy measures for the advancement of the 16 recommendations outlined in the SAHRC report.

The aforementioned Departments are required respectively to provide the House with a report within six months.

Report to be considered.

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