Christo van der Rheede’s latest somewhat vituperative response to me is revealing. Instead of answering the central question, he accuses me of caricature, polemic, “ideological compression”, and fabricating the FW de Klerk Foundation’s position. That is a convenient move, but, I am afraid, it will simply not do.

The issue is not my tone. Nor is it whether Van der Rheede personally opposes apartheid. Of course he does. The issue is not whether the Foundation has, at times, criticised rigid racial targets and permanent racial bureaucracy. It has. The issue is this: Van der Rheede has over recent weeks repeatedly defended the idea that post-1994 laws that use race for “redress” belong in a morally different category from apartheid-era race laws. In his own words, apartheid’s race laws were the “poison”, while post-1994 remedial race-based laws are the “antidote”.

This ill-conceived metaphor, betraying a larger issue of defining what is poison and what is antidote, is the heart of the dispute.

Van der Rheede’s criticism of the Race Law Index, a project of the Institute of Race Relations, the original trigger of the debate, is that it allegedly collapses morally and constitutionally different kinds of law into one inflammatory category. In his telling, the Index flattens apartheid-era laws designed to exclude, humiliate, and dominate together with post-1994 laws intended to remedy past injustice, as well as anti-discrimination provisions and data-gathering measures. This, he argues, creates a false equivalence between the “poison” of apartheid and the “antidote” of democratic redress, ignores constitutional jurisprudence on substantive equality, and allows the phrase “race laws” to be used for dubious political agendas. That is the criticism.

But it is also where his argument begins to fail: the Index is not a moral ranking of statutes or a claim that all race-related laws have the same purpose. It is a descriptive classification of whether race, or a proxy for race, still carries legal consequence in South African law.

The Index does not say that every law using race is morally identical to apartheid. It does not say that a post-1994 employment equity statute had the same purpose as the Population Registration Act. It asks a simpler question: does the law make race, or a proxy for race, legally relevant?

Fails

Van der Rheede’s “poison and antidote” argument, which he tries to use as a refutation of the Index, not only fails in this sense, but in fact confirms the usefulness of the Index and its methodology. For, Van der Rheede is not saying post-1994 law does not use race. Instead, he is saying that when post-1994 legislation uses race for remedial, antidotal purposes, it should not be treated as the same kind of problem that violates the constitutional commitment to non-racialism. A state that includes people on the basis of race still treats people on the basis of race.

A race-based, or as Van der Rheede prefers to say, “race-conscious” policy adopted in the name of redress still requires racial classification, racial counting, racial preference, racial targets and racial administration. Softer language does not change the operating logic.

In our debate on In Gesprek met Lourensa Eckard on 25 May, Van der Rheede put his own position plainly: before 1994, people were excluded on the basis of race; after 1994, legislation is supposed to include people on the basis of race. Those are his words, not my caricature. As with the “poison and antidote” argument, he cannot simply shift blame by talking about something else or seeking to land irrelevant personal blows on my character. Nor can he try to, as he did when we debated the matter, seek to postulate some sinister agenda to blaspheme him and embarrass the country.

To paraphrase a great non-racialist: it is not our Index that embarrasses South Africa, but the 145 race laws on the statute book.

Van der Rheede now says the Foundation rejects permanent racial bureaucracy and supports needs-based upliftment. Good. Then let us close the remaining gap between our positions and say clearly that redress must not be race-based at all. Not permanently. Not temporarily. Not bluntly. Not softly. Not as antidote. Let’s find common ground on the fact that all laws that give legal consequence to race are a moral, legal, and constitutional poison. Because once the state may treat citizens on the basis of race, it must first know, record, accept, or infer what race they are.

Race-based policy cannot operate without racial classification. And that very classification as a statal act flies in the face of constitutional non-racialism.

Misplaced

This is why Van der Rheede’s repeated appeals to section 9(2) of the Constitution are misplaced. Section 9(2) permits measures to advance persons, or categories of persons, disadvantaged by unfair discrimination. It does not say “racial groups”. It does not require racial procurement, racial scorecards, racial employment arithmetic, racial ownership rules, or racial targets. Redress is required. Race-based redress is not.

Nor is section 1’s commitment to non-racialism a dangerous “veto” over redress. If redress is needs-based and non-racial, there is no conflict. Non-racialism cannot veto non-racial redress. The supposed tension exists only if Van der Rheede reads section 9(2) as protecting measures that treat people on racial grounds.

The constitutional breakthrough of the early 1990s was not merely that white domination ended. It was that the state’s racial operating system was dismantled. FW de Klerk’s parliamentary campaign to repeal the Population Registration Act was not an administrative footnote, but the destruction of the very machinery by which the state organised citizens through race. Through that repeal, entrenched in section 1(b) of the Constitution, the option of classifying some race laws as poison and others as antidotes ought to have been utterly decimated. The Foundation Van der Rheede leads cannot honour that legacy while defending “antidote” race laws.

The real antidote to apartheid’s race laws is not better race laws. It is no race laws.

That does not mean ignoring apartheid’s legacy nor Van der Rheede’s own experiences with the apartheid regime. But it does mean addressing this vile legacy honestly and precisely. Redress should target weak schools, low household income, unemployment, lack of assets, broken municipalities, rural exclusion, poor public services, and barriers to opportunity. Because apartheid’s damage remains deeply embedded in South Africa’s socio-economic reality, such policies would overwhelmingly help those still carrying that burden. But they would help people because they are disadvantaged, not because the state has first placed them in a racial category.

If Van der Rheede abandons the notion that there can be “antidote” race laws, the distance between our positions vanishes entirely.

In ill temper, Van der Rheede ends his piece by telling me to stop with “soundbite rhetoric and caricaturing”. Perhaps he should rather abandon the very idea that race laws change from poison to antidote as long as intentions are noble. Perhaps he should stop hiding the core issue behind personal accusations of bad faith.

The question is simple: may the democratic state still treat citizens on the basis of race if it calls that treatment remedial? Whether he is willing to connect the dots of his own publicly made arguments or not, his “poison and antidote” framing says "yes". And therein lies the rub.

If we both want a South Africa free from racial bureaucracy, let us say so without reservation. Redress, yes. Substantive equality, yes. Serious action against poverty, exclusion, and the enduring consequences of apartheid, yes. But no racial discrimination or classification. And no “antidote” race laws. There is no such thing. All race laws are poison.