CLASSIFYING people in accordance with their race is "legally impossible", says trade union Solidarity in court papers challenging the constitutionality of an affirmative action policy.
The aim of the policy is to address the fact that the lucrative liquidation industry still remains largely a white, male enclave. But the implication of Solidarity’s argument is that all affirmative action policies would be unlawful — unless there is a system to determine how to categorise people in terms of race.
The argument is likely to raise eyebrows because the constitution specifically approves of "measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination" — including race-based measures, according to the Constitutional Court.
via www.bdlive.co.za
This is a very important case. The two underlined sentences capture the nub of the issue. Section 9(2) of the Constitution contains the second sentence. This is the section that the government uses as a blanket to cover all of its dodgy measures like the revised codes. I think that what Solidarity is questioning is whether the Constitution allows for racial classification. I don't think it does, if you cannot break people down into race groups then you can't have any EAP.
In heads, Solidarity’s counsel Greta Engelbrecht said that even the architects of the apartheid-era race classification system struggled to establish "with precision" the race of some people, adopting "ridiculous tests".
Ms Engelbrecht quoted University of Cape Town sociologist Deborah Posel at length, in describing some of the absurd methods used to classify people during apartheid days — including the infamous "pencil test", the "feel of an earlobe" and examining the "patch of skin on the inside of an arm".
"One official insisted he could tell a coloured with absolute certainty by the way he spits," quoted Ms Engelbrecht.
Though the hated Population Registration Act was repealed, Ms Engelbrecht argued the postapartheid government was still "seeking to arrange society" as four distinct races. "How in a postapartheid era we are to determine who is ‘African’, ‘coloured’, ‘white’ and ‘Indian’, is not explained," said Ms Engelbrecht.
I wrote about the apartheid racial classifications a few years ago. It didn't work then and it won't work now.
I do understand that we need to do something about the African majority, but the government is not going about it in any legal way. And the worst thing is that we are sitting here and tolerating this flagrant violation of Constitutional rights. Just like frogs in luke warm water that is heating up very quickly.
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