Sakeliga & NEASA demand withdrawal of 1950 race classification directive

Sakeliga and NEASA have sent a letter of demand to the Minister of Employment and Labour and the Minister of Home Affairs demanding that the government immediately cease directing employers to apply the repealed Population Registration Act of 1950 for racial classification of employees, and issue lawful alternative guidance.

The Population Registration Act established state-run racial classification in South Africa and required state officials to categorise every person by race.

On 5 December, the Department of Employment and Labour confirmed to NEASA that the repealed legislation should form part of the criteria for determining the race of employees, despite the Act being repealed in 1991. The instruction to apply the repealed Population Registration Act is not only unlawful, but also reveals the fundamental unacceptability of what the Employment Equity Act demands.

At the time of repeal by the National Party government in 1991, it was notably argued in Parliament and in public that the repeal was required because, amongst other things:

• the Act’s classification scheme was morally unacceptable,
• widespread public resistance to the Act had made it administratively untenable to implement, and
• it was a requirement to lift US sanctions.

The US Comprehensive Anti-Apartheid Act of 1986 imposed economic sanctions on South Africa, with the repeal of the Population Registration Act and state racial classification being a key condition for lifting those sanctions. Similar measures were in place in Europe and elsewhere globally.

The Department of Employment and Labour’s latest instruction that employers should apply the repealed 1950 Population Registration Act creates enormous risks for employers. Moreover, the instruction applies equally to local and international companies operating in South Africa, setting the scene for extensive international scrutiny and pressure. International businesses are particularly vulnerable, as they face pressure on the one hand to carry out the South African government’s race classification of their employees, and on the other hand to uphold non-discriminatory practices of their home countries and stakeholders.

It is incumbent upon the South African government to urgently retract the instruction that local and international employers operating in South Africa should use the 1950 Population Registration Act, and to replace that instruction with clear guidance that removes legal and ethical risks for employers by removing from them the responsibility of race classification of their employees.

Objections in the letter of demand:

The Department’s directive is inherently incapable of lawful or practical implementation, for several reasons:

No access to data: The classification regime under the 1950 Act relied on extensive state-held racial records, genealogical data, and administrative determinations. Private employers have neither lawful access to such information nor any statutory authority to investigate, verify, or adjudicate an individual's racial identity.

Speculation and arbitrary decisions: In the absence of self-classification and without access to historical state records, any racial classification undertaken by an employer on instruction of the state would necessarily be speculative, subjective, and susceptible to becoming arbitrary, capricious, defamatory, or discriminatory.

Multiple legal risks: Employers who attempt to comply with the directive would expose themselves to claims of unlawful administrative action, unfair discrimination, infringement of dignity, defamation, and the unlawful processing of personal information under the Protection of Personal Information Act.

State has abandoned the function: The Department of Home Affairs no longer performs, administers, or recognises a racial classification regime. The Minister of Home Affairs has confirmed that no such data will be collected or made available. It is irrational and unlawful for the state to impose upon private employers a function that the state itself has formally abandoned and for which no statutory information or authority now exists.

Sakeliga and NEASA's formal demands:

Sakeliga and NEASA formally demand that the Government:

• Immediately and unconditionally withdraw the unlawful directive instructing or implying that employers must use the framework under the Population Registration Act 30 of 1950 as a basis for classifying employees.
• Issue lawful and constitutionally sustainable guidance on the procedure to be followed when an employee declines to self-classify, and on whether employers are required to accept all self-classification by employees as provided.

Should the demands not be met in full, the organisations reserve the right to approach the Courts for appropriate relief.

Resources:

• Letter of demand sent to the Minister of Employment and Labour and the Minister of Home Affairs