Christo van der Rheede of the FW de Klerk Foundation finds the descriptor “race law” (which he places in scare quotes) dubious – “emotionally explosive”, even – when applied to post-1994 legislation. Yet he readily speaks of “race-conscious law” without apparent discomfort.

It is concerning that several minutes of a recent televised debate was dedicated to discussing my work – by name – in my absence, but that aside: it is difficult to understand why the insertion of a single adjective (“conscious”) should transform an otherwise objectionable category of substantive law into an acceptable one.

The substance remains the same: law that treats a person’s race or skin-colour – something they had no say in determining – as a legally relevant fact.

Van der Rheede’s distinction between Apartheid-era race laws and contemporary “transformation” measures rests entirely on subjective judgements of legislative (that is, fully partisan-political) intention. To him, pre-1994 statutes that classified by race were in fact race laws because their drafters’ purposes were malign. Post-1994 statutes that do the same are apparently not race laws, for no reason other than their drafters have declared remedial or benevolent purposes.

This is not an objective or factual approach to legal analysis.

Liberal Non-Racialist Movement

The South African Institute of Race Relations (IRR) was founded in 1929 – nearly two decades before the formal Apartheid era began in 1948. I serve on the Council of the IRR and have been responsible for the Index of Race Law since 2022, and previously served as deputy head of policy research. In 2019, I undertook a comprehensive, peer-reviewed study of the history of the liberal non-racialist movement in South Africa, of which the IRR has formed the most substantial part.

For the great majority of its existence, the IRR has classified and analysed legislation according to whether it makes race or skin colour legally salient, without substantive regard (though it has always been politically interesting to note) to the partisan rhetoric or professed intentions of those who enacted it.

The Group Areas Act was a race law in 1950. Its drafters, too, claimed it served worthy ends. The IRR did not withhold judgement or the description of “race law”, “race-based law”, “law affecting race relations”, or so-called “race-conscious law” then, and there is no principled reason to do so now in 2026.

A race law is most accurately and simply defined as positive law that renders a person’s biological or ethnic racial characteristics into legally relevant factors – something the common law (the law without political interference) is fully non-racial on.

That definition has served the IRR’s work – and the work of civil rights advocates across the Western world – for decades. It does not require embellishment.

Laws that allocate opportunities, burdens, or benefits according to whether individuals today merely “look like” those who were classified as disadvantaged or privileged in the 1950s or 1980s – rather than according to their actual present socio-economic circumstances – obviously continue to operationalise race. Hence, they remain “race law” in substance, whatever adjective is placed in the middle.

Ironclad

The IRR’s principles have been ironclad, classical liberal non-racialism from the start, and will remain that to the end.

It does not bend to accommodate the declared intentions of whoever happens to hold power. Objective analysis of South African law – which includes the Constitution itself and the hopelessly flawed Van Heerden judgment – demands consistent categories and metrics of evaluation. Re-labelling race-based measures according to the political convenience of the moment produces only euphemism and gaslighting, not clarity or prosperity.

South Africa’s constitutional order aspires explicitly to non-racialism. Pretending that current statutory distinctions based on skin colour escape that description simply because they are presented as “corrective” can never advance that aspiration. It will only delay the honest reckoning required to move beyond them.

Classical liberals, liberal democrats, centrists, moderate conservatives, and all manner of sensible, reform-minded South Africans with an interest in individual dignity and social prosperity will continue to describe these laws for what they are.

Dr Martin van Staden is the editor of the IRR’s Race Law Project, head of policy at the Free Market Foundation, and possesses a doctorate in law.