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THE SOUTH AFRICAN IMMIGRATION QUESTION: HOW DID WE GET HERE? – By Dele Olojede, Founder and Host of Africa In The World ideas festival and Pulitzer Prize Winner

This past Tuesday, June 30, thousands of black South Africans marched in the streets of its towns and cities, demanding that fellow black Africans, whom they have deemed ‘illegal’, must immediately vacate their country. Happily, the worst fears of widespread anti-immigrant violence appeared to have been avoided. President Cyril Ramaphosa, roused at last from the craven inertia of his government, had appeared to broker a late night deal with some of the nativist leaders who have hitherto been violent in word and deed.

The day’s deadline for all of these ‘illegal’ Africans to go back where they come from was the culmination of years of periodic convulsions, in which many immigrant strivers, most horrifically the Somalis, have been killed, their entrepreneurial inclinations a ready magnet for township resentment.

African migrants in South Africa have become the scapegoat for the country’s myriad ailments, some structural from apartheid origins, but mostly a result of the catastrophic failings of the ruling African National Congress, which has been in charge of the country since 1994.

In the first 15 years since that historic advent of democracy, South Africa was a country clearly on its way to the promised land. It was led by capable and even inspiring leaders. Its economic management in those years was perhaps the most progressive and effective in the country’s history. Over a period of 10 years, it moved fully a quarter of its population into the middle class— a rate faster than even the Chinese managed. Despite notable failings, particularly in public education, most indications were pointing ever upwards. The economy saw periods of sustained growth. Even its sports teams, long denied legitimacy internationally, were riding the wave of an optimistic and united country. Bafana Bafana, the national football team, became African champions. Even more remarkably, South Africa integrated its beloved national rugby team, the Springboks, and has since gone on a successful campaign of world domination.

And then the ANC, the party of Pixley ka Isaka Seme, of Luthuli and Kathrada and Slovo and Tambo, decided to commit suicide in 2009 and handed the country over to Jacob Zuma, leading to an era of ‘state capture,’ institutionalized corruption, and the hollowing out of public institutions. Its municipalities have failed one by one. Potable water, electricity, and mass transit collapsed. The ANC has become more focused on renaming cities than running them. Unemployment rocketed to a third of the work force, including fully half of all young adults. A prolonged economic stagnation has sapped citizens’ confidence. The moral and intellectual collapse of the ANC has thrown the country into a sink hole, from which it is now trying to emerge.

These are not conditions suitable for a well-mannered and happy land. For the bottom half of South Africa that is really struggling and senses that the bright promise of democracy has recently turned out to be a cruel joke, it is not that hard to lash out at the ready scapegoats— the immigrants living amongst them. These Africans, some 90 percent of them from the neighboring countries of Zimbabwe, Malawi, Mozambique, Zambia, eSwatini and Lesotho, are surely to blame. They must have taken jobs, and freeloaded on public facilities, and must be subject to the tender mercies of the mob. With the approach of local elections, and with the once-dominant ANC now bleeding to death politically, many politicians have jumped on the anti immigrant bandwagon. For practical purposes, these “foreigners” are indistinguishable from citizens, since South Africa has more Sothos than Lesotho, more Tswanas than Botswana, and more Swazi than eSwathini.

Many Africans, from Harare and Nairobi and Lusaka and Accra and Lagos, are looking on in utter horror. The spectacle of African governments having to hastily arrange the evacuation of their citizens from South Africa, in order to protect them from harm, strikes many as a kind of betrayal. So tattered is South Africa’s reputation right now in the rest of the continent that many of us cringed in embarrassment as people in African capitals cheered for Mexico and against South Africa on the opening day of the current FIFA World Cup, which Bafana lost. That must be the first time in memory.

How did we get here?

I first set foot in South Africa on April 20, 1992, having flown from New York to the then Jan Smuts (now O.R. Tambo International) Airport in Johannesburg. My mission was to open an Africa bureau for my then employer, New York Newsday. Nelson Mandela had been out of prison for two years. Formal negotiations to end apartheid with as little convulsion as possible were under way. Apartheid as a means of organizing society was not yet formally dead, but it was most definitely in its death throes. My assignment, over the next four years, was to chronicle the birth of a new country in full democratic flowering— a country so stocked, as I came to find, with the world’s most extraordinary people at all levels of society, and across the canyons that then divided it.

On April 27, 1994 I stood but a few feet from Mandela to watch him cast his first vote ever, the same as millions of other black South Africans who were participating in that once-sacred civic ritual of choosing one’s own leaders. Later that morning I was back in Soweto, outside Johannesburg, and was witness to those improbably peaceful and inspiring miles-long lines of first time voters. There I met 75-year-old Sylvia Radebe, who said to me she was voting that day for her nephew. I asked if he was a candidate and she said no— that he was among the thousands of young people who fled to the rest of the African continent after the bloody Soweto Uprising of 1976, where they were given refuge and an education and communal support until they could return to their own country. Mrs. Radebe’s nephew was known to have fled to Tanzania, but was never heard from again and was presumed dead. It was in honor of his memory, she said, that she was voting that day.

That very day, when South Africans gave birth to a new country, was the greatest day of my life, rivaled only by the births of my two daughters on either side of that year of freedom. If, as I am, you are a Nigerian born at a certain time, say around the dawn of independence in 1960, you’d understand that we grew up believing that our greatest mountain to scale was the freedom from colonial rule of the entire African continent. By the time Rhodesia became Zimbabwe on April 18, 1980, we all knew the final domino to fall would be South Africa. This was not an isolated elite feeling. Even Nigeria’s then military government was militantly progressive on the question of ending apartheid. Citizens funded the liberation movements by voluntarily donating a portion of their paychecks. Mine, interning in 1980 at the department of information in Lagos, was 5 percent. We felt like the proud vanguard of African freedom. Thabo Mbeki was for three years the urbane pipe-smoking country rep for the African National Congress in Lagos in the late 1970s. He was a regular at Fela Kuti’s Afrika Shrine. ‘Zombie’ was the soundtrack of the Afrobeat Rebellion.

Years later, after Mbeki was elected Mandela’s deputy and later succeeded him as president in 1999, it was a given that South Africa and Nigeria in particular were going to forge an enduring alliance to drive Africa forward. The two countries formed a bi-national commission, comprising their entire cabinets, which met annually to plot African integration and set standards. This level of collaboration reached its apogee when Olusegun Obasanjo and Mbeki were president. It has been left to wither on the vine since the Zuma years.

Nowadays I spend much of my time in the rather pleasant surrounds of the Cape Winelands, where I also host an annual ideas festival. Stellenbosch for now exists in a kind of splendid isolation, where intellectuals and billionaire entrepreneurs, surrounded by regal mountains, dazzling vineyards and a twinkling sea, are accustomed to a kind of dance of the floreadores. We could not be farther from the urgent troubles of the world.

But even here, for the past several months I have fielded calls from panicked relatives and friends concerned for my safety and wellbeing. Many imagine the rampaging hordes have already descended on my verdant valley, armed with pangas and assegais and quite evidently without intending to entertain us with traditional Zulu dances and warrior chants. I have assured them, repeatedly but obviously unsuccessfully, that I am safe. Just this morning I received a call from a Nigerian friend, who in oligarch terms would have been right at home here in Stellenbosch.

“What are you still doing in that place”, he asked in evident astonishment. “All of us are looking at them with sadness and shock, because they have just told the rest of us that we are not brothers.”

For those of us who believe that an increasingly integrated Africa is our path to survival in a dysfunctional and hostile world, we have a lot of repair work to do.

Disclaimer: An abridged version of this article was first published in the Financial Times

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By |2026-07-02T19:38:33+02:00July 2nd, 2026|Blog, General, International|Comments Off on THE SOUTH AFRICAN IMMIGRATION QUESTION: HOW DID WE GET HERE? – By Dele Olojede, Founder and Host of Africa In The World ideas festival and Pulitzer Prize Winner
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THE TRUTH ABOUT RACE-BASED REMEDIAL MEASURES IN SOUTH AFRICA – By Vuyani Ngalwana SC

I am a Black South African and a senior legal practitioner in South African higher Courts with more than 25 years’ experience especially in public law and commercial law. I have also appeared in neighbouring Namibian Courts. My legal practice is mainly focused at appellate level. For the first 14 years of my life, I grew up in South Africa’s dusty black townships that resemble Nazi concentration camps in their design, an idea largely of the apartheid white South African government – through a series of pieces of legislation beginning with the Group Areas Act of 1950 – aimed at fostering its idea of “separate development” of various race groups.

As a lawyer of many years’ experience in South Africa, I am driven by many recent developments to offer this Constitutional law-based perspective. These recent developments range from a traditionally white-interests political party (that is in a coalition government with Nelson Mandela’s African National Congress) threatening to collapse the coalition over South Africa’s President’s signing of a new Expropriation Bill into law, to the outlandish pronouncements and observations made by the policy head of Afriforum, a self-proclaimed white sectional interest group, in a recent interview with Tucker Carlson.

These recent developments have brought into sharp focus the question of the constitutionality of race-based remedial measures aimed at redressing the race-based imbalances caused by the socio-economic monstrosity that is apartheid, as a coterie of organisations that go under the umbrella of Afriforum and Solidarity (a white mainly Afrikaner trade union) have travelled to the United States determined to portray South Africa as a genocidal, racist and rapacious state that seeks to take away property from white people without compensating them. This comes in the wake of President Cyril Ramaphosa signing into law a piece of legislation styled the Expropriation Act, 13 of 2024, replacing an old pre-Constitution (1975) piece of legislation bearing a similar title.

It is not my purpose in this short paper to discuss that piece of legislation, save to say that the claim that this new Expropriation Act seeks to deprive white people of land without any compensation is rooted in mendacity of a most disingenuous and dangerous kind. I suspect the people who spread this falsehood know that they are either lying or are grossly overstating their position. After all, if they truly believe what they are propagating, they would already have challenged the constitutional validity of this piece of legislation in the courts and, if they are correct in their claim, the South African courts will set aside the legislation as unconstitutional – a power or competence that the South African Constitution confers on higher courts in South Africa.

This is because section 25(1) of the South African Constitution – which became the supreme law in South Africa in December 1996 but came into effect in February 1997 – prohibits “arbitrary deprivation of property”. Although property ownership or possession is not an absolute right in South Africa for everyone, there are very stringent justification grounds that government would have to satisfy for the limitation of a right to property to pass constitutional muster.

The South African Constitution – hailed around the world as the most liberal Constitution in the world – provides that the rights contained in the Bill of Rights Chapter of the Constitution (and these include property or land rights) can only be “limited” (not taken away, but limited) in terms of “law of general application” (not edicts or “executive orders”) to the extent that such limitation is “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom” (not based on a politician’s whim or presidential “executive order”). Such limitation, says the South African Constitution, must factor in (1) the nature of the right; (2) the importance of the purpose of the limitation; (3) the nature and extent of the limitation; (4) the relation between the limitation and its purpose; and (5) less restrictive means to achieve the desired purpose. So, for example, if there exist less invasive means of achieving the desired governmental purpose than limiting a property right or expropriating land, the South African courts – which are the final arbiters in these matters, not politicians – will not allow expropriation.

My purpose in this paper is to place what Afriforum and company claim about South Africa in a proper and Constitutional law-based perspective without political spin or damaging propaganda content. It is my hope that those not familiar with the South African constitutional and justice system will gain a better understanding of what the real objective truth is as regards race-based remedial measures in South Africa.

The purpose of Race-Based Remedial Measures

The South African Constitution emerges from many years of multi-party negotiations (at least that is the idées reçus) between those who were oppressors on the one hand (predominantly, but not exclusively, the Afrikaner section of the white population in South Africa) and those who were oppressed under the apartheid system on the other (all Black South Africans). Its provisions are a product of agreement or compromise by all political parties in South Africa. These include parties that overtly represent the sectional interests of white people, including those whom Afriforum claims to represent in its denigration and deprecation of my country, South Africa, in a foreign country, the United States.

The proper perspective is vastly different from what the United States has been told by Afriforum, in its recent visit there.

Before the Constitution was passed into law in December 1996 (and before its interim predecessor in 1993), Black South Africans were not allowed by law to own property or land in South Africa. Numerous pieces of legislation, including the Group Areas Act, 1950, saw to that. Even ingenious ways by Black South Africans to own property or trade in so-called “white areas” within their own country through corporations were quashed by the apartheid courts’ executive-minded interpretation of legislation. Instead, successive apartheid white governments carved out pockets of unproductive land in what they cynically called “homelands” or “bantustans” and decreed that Black South Africans must live in those pockets and govern themselves there. These were divided according to ethnicity, so that Zulus (AmaZulu) had their own “homeland”, Xhosas (amaXhosa) their own, Sothos (baSotho) their own, and so on.

Black South Africans had no voting rights in South Africa and so could not influence laws and political policies within South Africa. Black townships (concentration camps) were designed to serve as temporary residential areas from where white companies and families could source labour at slave wage levels, and in order to reside in those townships and secure “employment”, adult male Black South Africans were required by law always to carry a work and residence permit (the dompass) on their person and produce it on demand by any police official (and by any white person who served as an extension of the apartheid “influx control” system).

Because Black South Africans were not considered citizens in South Africa, they became victims of many forced removals from their land which was taken for white occupation and “ownership”.

It is from this perspective that Race-based Remedial Measures in South Africa should be understood. Far from being “reverse racism” or “revenge racism”, these measures aim at redressing apartheid’s socio-economic vestiges. They are a concept that has been accorded some notoriety in recent years in South Africa, and now seemingly in the United States courtesy of Afriforum and Solidarity. This is unfortunate as it diverts the attention of all South Africans and the world away from where it should be: building a South African nation that is moored on the constitutional foundation of sustainable equity, fairness and the rule of law.

As I understand it, Race-based Remedial Measures are rooted in the Constitution of South Africa and, as a “measure designed to protect and advance categories of persons disadvantaged by unfair discrimination”, it has found support in numerous judgments of the Constitutional Court of South Africa, the highest court in the South African court hierarchy – an equivalent, if you like, of the United States Supreme Court or the British Supreme Court.

This is not surprising. Following the war, largely in Europe, between 1939 and 1945 – although human rights abuses against the Jewish people of Europe date back to at least 1933 soon after the Nazi Party came to power in Germany – reparations for Jewish people have continued unabated. To this day, more than 8 decades after the end of that war, one still reads about reparations for Jewish folks and perpetrators of human rights abuses against them being hunted down. It is generally accepted that about 6 million Jews were murdered and their property taken from them over that period between 1933 and 1945.

By comparison, countless numbers of Black South Africans have suffered genocidal intent at the hands of successive white apartheid governments, their women and children raped, and their land taken away from them over decades. No one is pursuing the hunt for perpetrators of those atrocities because Black South Africans agreed to “let bygones be bygones” as the last apartheid Prime Minister FW de Klerk infamously and cynically put it. But, at the very least, one would have expected that Reparations of the kind offered to the Jews of Europe would not only be welcome but also demanded by the nations of the world, including the United States.

How did we end up with what is otherwise a noble concept of reparations or remedial measures sitting in the gutter and being used as a blunt political instrument that has the potential of reversing the negotiated settlement that gave birth to what is widely termed the miracle that is the “New South Africa”? I see a number of players contributing to this unfortunate state of affairs, but we could probably group them into two broad categories.

There are those who mischievously use the term in a negative sense, primarily because their economic interests seem to lie in the suppression of the Transformation of South Africa’s economy. Simply put, if the South African economy were to be transformed so that the Black majority can have a seat at the economic table, some people would need to give up the economic power they have held for eons. Thus, in creating a diversion, to what has now become an emotive issue, the South African people do not see the full picture.

Then there are those who do not see the connection between a diversion of attention, on the one hand, and the lack of transformation, on the other. And so, by their ignorance, they tend to serve as witting or unwitting conveyors of the first lot for the message that Race-based Remedial Measures mean the looting of privately owned land or property. And thus, without much effort, a term that should have a positive meaning in South Africa has become a weaponised “swear word”.

Now, let us consider the anchor for Race-based Remedial Measures and what makes them in perfect sync with the South African Constitution – and, I dare say, with Public International Law if the Jewish experience is any indication.

The SA Constitution and the Legislation that gives effect to it

The starting point, as always, is the SA Constitution. Sections 9 and 217 of the SA Constitution are the provisions that anchor Race-based Remedial Measures in South Africa’s economic transformation agenda. Section 9, in relevant part, says:

“(1)    Everyone is equal before the law and has the right to equal protection and benefit of the law.

(2)      Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

(3)      . . .”

Section 217 says:

“(1)    When an organ of state in the national, provincial or local sphere of government, or any other institution identified in national legislation, contracts for goods or services, it must do so in accordance with a system which is fair, equitable, transparent, competitive and cost-effective.

(2)      Subsection (1) does not prevent the organs of state or institutions referred to in that subsection from implementing a procurement policy providing for–

          (a)      categories of preference in the allocation of contracts; and

          (b)      the protection or advancement of persons, or categories of persons, disadvantaged by unfair discrimination.

(3)      National legislation must prescribe a framework within which the policy referred to in subsection (2) must be implemented.”

But, in their current phrasing, it would seem that these constitutional provisions do not make the taking of these measures, that are designed to protect or advance persons, or categories of persons, disadvantaged by apartheid, compulsory. They seem to leave that task in the discretion of each government administration. Whether that is commensurate response to the magnitude of the problem sought to be addressed, is a question I leave to you.

But once that discretion has been exercised favourably, there can be no valid complaint, except on the basis of the test laid down by the Constitutional Court in Minister of Finance v Van Heerden 2004 (6) SA 121 (CC) in these words:

“When a measure is challenged as violating the equality provision, its defender may meet the claim by showing that the measure is contemplated by s 9(2) in that it promotes the achievement of equality and is designed to protect and advance persons disadvantaged by unfair discrimination. It seems to me that to determine whether a measure falls within s 9(2) the enquiry is threefold. The first yardstick relates to whether the measure targets persons or categories of persons who have been disadvantaged by unfair discrimination; the second is whether the measure is designed to protect or advance such persons or categories of persons; and the third requirement is whether the measure promotes the achievement of equality.”

The Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000 (the Equality Act) is one of the “measures” envisaged in s 9(2) and s 217(3) of the SA Constitution. Its preamble sets out in clear and unambiguous terms the values that inform its passing into law and the legitimate governmental purpose it aims to achieve:

“The consolidation of democracy in our country requires the eradication of social and economic inequalities, especially those that are systemic in nature, which were generated in our history by colonialism, apartheid and patriarchy, and which brought pain and suffering to the great majority of our people;

Although significant progress has been made in restructuring and transforming our society and its institutions, systemic inequalities and unfair discrimination remain deeply embedded in social structures, practices and attitudes, undermining the aspirations of our constitutional democracy;

The basis for progressively redressing these conditions lies in the Constitution which, amongst others, upholds the values of human dignity, equality, freedom and social justice in a united, non-racial and non-sexist society where all may flourish;

South Africa also has international obligations under binding treaties and customary international law in the field of human rights which promote equality and prohibit unfair discrimination. Among these obligations are those specified in the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Elimination of All Forms of Racial Discrimination;

Section 9 of the Constitution provides for the enactment of national legislation to prevent or prohibit unfair discrimination and to promote the achievement of equality;

This implies the advancement, by special legal and other measures, of historically disadvantaged individuals, communities and social groups who were dispossessed of their land and resources, deprived of their human dignity and who continue to endure the consequences;

This Act endeavours to facilitate the transition to a democratic society, united in its diversity, marked by human relations that are caring and compassionate, and guided by the principles of equality, fairness, equity, social progress, justice, human dignity and freedom…”

Now, what has the Constitutional Court – the highest court in the South African court hierarchy – said about all this?

Constitutional Court pronouncements on Race-based Remedial Measures

The South African courts, including the SA Constitutional Court, have ruled in support of measures taken pursuant to s 9(2) of the Constitution, for the protection and advancement of people disadvantaged by apartheid. Let us be clear; the “persons, or categories of persons, disadvantaged by unfair discrimination” that s 9(2) of the SA Constitution references are mainly and predominantly Black South Africans.

In Stoman v Minister of Safety and Security and Others 2002 (3) SA 468 (T) at 477F-H (cited with approval by van der Westhuizen J in Barnard 2014 (6) SA 123 (CC) at para [137]), the North Gauteng High Court said:

“[T]he recognition of substantive equality means . . . that equality is more than mere non‑discrimination. When a society, and perhaps the particular role players in a certain situation, come from a long history of discrimination, which took place individually, systemically and systematically, it cannot simply be assumed that people are in equal positions and that measures distinguishing between them amount to unfair discrimination.”

In National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6 (CC) at para [60] the SA Constitutional Court said:

“It is insufficient for the Constitution merely to ensure, through its Bill of Rights, that statutory provisions which have caused such unfair discrimination in the past are eliminated.  Past unfair discrimination frequently has ongoing negative consequences, the continuation of which is not halted immediately when the initial causes are eliminated, and unless remedied, may continue for a substantial time and even indefinitely.  Like justice, equality delayed is equality denied.”

In South African Police Service v Solidarity obo Barnard 2014 (6) SA 123 (CC), the Constitutional Court said (at para 29):

“At the point of transition, two decades ago, our society was divided and unequal along the adamant lines of race, gender and class. Beyond these plain strictures there were indeed other markers of exclusion and oppression, some of which our Constitution lists. So, plainly, it has a transformative mission. It hopes to have us re-imagine power relations within society. In so many words, it enjoins us to take active steps to achieve substantive equality, particularly for those who were disadvantaged by past unfair discrimination. This was and continues to be necessary because, whilst our society has done well to equalise opportunities for social progress, past disadvantage still abounds.”

In Minister of Finance v Van Heerden 2004 (6) SA 121 (CC) the Constitutional Court said:

“The essence of restitutionary measures is to guarantee the right to equality for the reason that, without such measures, the achievement of equitable treatment will continue to elude us as a society. The Labour Court (Waglay J as he then was) commented, in Harmse v City of Cape Town, that the implementation of employment equity orientated measures is a duty placed upon designated employers by the Employment Equity Act which also provides them with affirmative action as a defence against claims of unfair discrimination. Commenting on that decision, Prof Carole Cooper states that employment equity orientated measures ‘do not amount to an exception to equality but are integral to its achievement’ which is in essence ‘substantive equality’.”

In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC) it said:

“[75] The commitment to achieving equality and remedying the consequences of past discrimination is immediately apparent in section 9(2) of the Constitution. That provision makes it clear that under our Constitution ‘[e]quality includes the full and equal enjoyment of all rights and freedoms’. And more importantly for present purposes, it permits ‘legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination’. These measures may be taken ‘[t]o promote the achievement of equality’.

[76]  But transformation is a process. There are profound difficulties that will be confronted in giving effect to the constitutional commitment of achieving equality. We must not underestimate them. The measures that bring about transformation will inevitably affect some members of the society adversely, particularly those coming from the previously advantaged communities. It may well be that other considerations may have to yield in favour of achieving the goals we fashioned for ourselves in the Constitution. What is required, though, is that the process of transformation must be carried out in accordance with the Constitution.”

Again, in Minister of Finance and Another v Van Heerden 2004 (6) SA 121 (CC), the SA Constitutional Court made it clear that measures implemented to redress past imbalances are not a deviation from, or invasive of, the right to equality, but rather contribute to the constitutional goal of achieving equality in order to ensure the full and equal enjoyment of all rights. Justice Moseneke said:

“[30]  Thus, our constitutional understanding of equality includes what Ackermann J in National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Another calls ‘remedial or restitutionary equality’. Such measures are not in themselves a deviation from or invasive of, the right to equality guaranteed by the Constitution. They are not ‘reverse discrimination’ or ‘positive discrimination’ as argued by the claimant in this case. They are integral to the reach of our equality protection. In other words, the provisions of s 9(1) and s 9(2) are complementary; both contribute to the constitutional goal of achieving equality to ensure ‘full and equal enjoyment of all rights’. A disjunctive or oppositional reading of the two subsections would frustrate the foundational equality objective of the Constitution and its broader social justice imperatives.

[31]  Equality before the law protection in s 9(1) and measures to promote equality in s 9(2) are both necessary and mutually reinforcing but may sometimes serve distinguishable purposes, which I need not discuss now. However, what is clear is that our Constitution and in particular s 9 thereof, read as a whole, embraces for good reason a substantive conception of equality inclusive of measures to redress existing inequality. Absent a positive commitment progressively to eradicate socially constructed barriers to equality and to root out systematic or institutionalised underprivilege, the constitutional promise of equality before the law and its equal protection and benefit must, in the context of our country, ring hollow.”

The South African equality jurisprudence is clear. The taking of measures aimed at advancing persons or categories of persons disadvantaged by apartheid is to be celebrated and reinforced, not ridiculed. Race-based Remedial Measures fall among that category of measures envisaged in s 9(2) of the SA Constitution. Those in the executive of government, and who swore an oath to protect and uphold the Constitution, who either actively campaign against Race-based Remedial Measures or who fail to implement it, are failing in their constitutional obligation and there is a remedy in the SA Constitution itself against an executive which is guilty of such conduct. Section 89(1)(a) of the SA Constitution says the National Assembly (Members of Parliament) may remove the President for “a serious violation of the Constitution or the law”.

If Members of Parliament should themselves fail to hold the President to account for his failure to fulfil his constitutional obligation of Race-based Remedial Measures, citizens can approach the courts to force them to do just that. We have a perfect example of precisely the exercise of that right by citizens through a political party in South Africa’s Constitutional Court’s so-called Secret Ballot case [UDM v The Speaker and Others (CCT 89/17) [2017] ZACC 21; 2017 (8) BCLR 1061 (CC); 2017 (5) SA 300 (CC) (22 June 2017)].

SA Government Policy

Not only are Race-based Remedial Measures under the umbrella of Radical Economic Transformation anchored in the SA Constitution, they also, rightly, spring from a resolution of the ruling party and a policy of government. On 9 February 2017, the then President of the ruling African National Congress and of South Africa unfurled the policy of Radical Economic Transformation at his State of the Nation Address. He said:

“The skewed nature of ownership and leadership patterns needs to be corrected. There can be no sustainability in any economy if the majority is excluded in this manner. In my discussions with the business community, they accepted these transformation imperatives.

Today we are starting a new chapter of radical socio-economic transformation. We are saying that we should move beyond words, to practical programmes. The State will play a role in the economy to drive that transformation. In this regard, government will utilise to the maximum, the strategic levers that are available to the State. This includes legislation, regulations, licensing, budget and procurement as well as Broad-based Black Economic Empowerment charters to influence the behaviour of the private sector and drive transformation…

During this year, the Department of Economic Development will bring legislation to Cabinet that will seek to amend the Competition Act, 1998 (Act 89 of 1998). It will, among others, address the need to have a more inclusive economy and to de-concentrate the high levels of ownership and control we see in many sectors. We will then table the legislation for consideration by Parliament. In this way, we seek to open up the economy to new players, give black South Africans opportunities in the economy and indeed help to make the economy more dynamic, competitive and inclusive. This is our vision of radical economic transformation.”

The Competition Act was indeed amended in 2018 to bring public policy considerations within the competition law landscape. The Competition Appeal Court (CAC), in eMedia Investments (Pty) Ltd South Africa v Multichoice (Pty) Ltd and another [2022] 2 CPLR 23 (CAC) has now highlighted the breadth of the meaning of the word “participation” within the context of the Competition Act, so that it covers not only firms that participate in a given market but also those that do so sustainably, whether they are competitors or customers of the dominant firm. It said (at para 90):

“An amendment to the Competition Act in 2018 introduced various definitions making them wider and ensuring closer consistency with the transformative goals of the Competition Act.  The word “exclusionary act” is defined in section 1(c) to mean an act that impedes or prevents a firm from entering into, participating in or expanding within a market.  A further amendment in section 1(h) of the Act defined “participate” as referring to the ability of or opportunity for firms to sustain themselves in the market. …”

There are disingenuous attempts at drawing a false parallel between remedial measures aimed at redressing apartheid’s insidious effects on Black South Africans on the one hand, and apartheid’s crude and murderous racial discrimination against Black South Africans on the other. While these race-based remedial measures are anchored in what the world accept as the most liberal Constitution in the world, and are subject to constitutional scrutiny by the courts, the apartheid policy was declared a Crime Against Humanity by the United Nations General Assembly in 1966 which was endorsed by the Security Council in 1984. There is simply no comparison or equivalence.

Conclusion

Race-based Remedial Measures are a constitutional imperative in South Africa. They are rooted in the Constitution itself. The South African courts, including the Constitutional Court, supports their implementation as remedial measures intended to address the economic exclusion of Black people under apartheid. The association of these measures with “apartheid” or “unfair race discrimination” is mischievous and, I venture, intended to suppress Transformation of the South African economy. Right-thinking South Africans and world leaders should not be deterred from a constitutional path by mischievous misalignment of a perfectly constitutional project.

I would respectfully urge those – in the United States and elsewhere – who are not familiar with South Africa’s Constitutional landscape and jurisprudence to familiarise themselves with it before accepting at face value everything they are told by persons and organisations that seek to promote their own sectarian interests at the cost of their own country’s security and economic interests. The collapse of the South African economy is in no one’s interest, including the United States.

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By |2025-03-07T08:41:00+02:00March 5th, 2025|Blog, General, International|2 Comments
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R (on the application of Miller) v The Prime Minister; Cherry and others v Advocate General for Scotland [2019] UKSC 41 (24 September 2019)

On 17, 18 and 19 September 2019, oral argument was presented at the UK Supreme Court (the highest court in the United Kingdom) on whether the UK Prime Minister’s advice to Her Majesty that Parliament should be prorogued (or suspended or discontinued without being dissolved) from a date between 9 and 12 September until 14 October 2019 was lawful.

Of the circumstances giving rise to this case, the UK Supreme Court said:

“It arises in circumstances which have never arisen before and are unlikely ever to arise again. It is a “one off”. But our law is used to rising to such challenges and supplies us with the legal tools to enable us to reason to a solution.”

But what were those circumstances?

Since the question hinges on the lawfulness or otherwise of the prorogation of Parliament, that inquiry must of necessity begin by addressing the antecedent question: What is prorogation and how does it differ from Parliamentary recess and/or dissolution?

What is Prorogation?

Happily, a useful exposition in relation to that very question, as well as the distinction between prorogation on the one hand, and Parliamentary recess and/or dissolution, on the other, is contained in the UK Supreme Court’s unanimous judgment in these terms:

“2. Parliamentary sittings are normally divided into sessions, usually lasting for about a year, but sometimes less and sometimes, as with the current session, much longer. Prorogation of Parliament brings the current session to an end. The next session begins, usually a short time later, with the Queen’s Speech. While Parliament is prorogued, neither House can meet, debate and pass legislation. Neither House can debate Government policy. Nor may members of either House ask written or oral questions of Ministers. They may not meet and take evidence in committees. In general, Bills which have not yet completed all their stages are lost and will have to start again from scratch in the next session of Parliament. In certain circumstances, individual Bills may be “carried over” into the next session and pick up where they left off. The Government remains in office and can exercise its powers to make delegated legislation and bring it into force. It may also exercise all the other powers which the law permits. It cannot procure the passing of Acts of Parliament or obtain Parliamentary approval for further spending.

3. Parliament does not decide when it should be prorogued. This is a prerogative power exercised by the Crown on the advice of the Privy Council. In practice, as noted in the House of Commons Library Briefing Paper (No 8589, 11th June 2019), “this process has been a formality in the UK for more than a century: the Government of the day advises the Crown to prorogue and that request is acquiesced to”. In theory the monarch could attend Parliament and make the proclamation proroguing it in person, but the last monarch to do this was Queen Victoria in 1854. Under current practice, a proclamation is made by Order in Council a few days before the actual prorogation, specifying a range of days within which Parliament may be prorogued and the date on which the prorogation would end. The Lord Chancellor prepares a commission under the great seal instructing the Commissioners accordingly. On the day chosen for the prorogation, the Commissioners enter the House of Lords; the House of Commons is summoned; the command of the monarch appointing the Commission is read; and Parliament is formally prorogued.

4. Prorogation must be distinguished from the dissolution of Parliament. The dissolution of Parliament brings the current Parliament to an end. Members of the House of Commons cease to be Members of Parliament. A general election is then held to elect a new House of Commons. The Government remains in office but there are conventional constraints on what it can do during that period. These days, dissolution is usually preceded by a short period of prorogation.

5. Dissolution used also to be a prerogative power of the Crown but is now governed by the Fixed-term Parliaments Act 2011. This provides for general elections to be held every five years and for an earlier election to be held in only two circumstances: either the House of Commons votes, by a majority of at least two-thirds of the number of seats (including vacant seats) in the House, to hold an early election; or the House of Commons votes that it has no confidence in Her Majesty’s Government and no-one is able to form a Government in which the House does have confidence within 14 days. Parliament is dissolved 25 days before polling day and cannot otherwise be dissolved. The Act expressly provides that it does not affect Her Majesty’s power to prorogue Parliament (section 6(1)).

6. Prorogation must also be distinguished from the House adjourning or going into recess. This is decided, not by the Crown acting on the advice of the Prime Minister, but by each House passing a motion to that effect. The Houses might go into recess at different times from one another. In the House of Commons, the motion is moved by the Prime Minister. In the House of Lords, it is moved by the Lord Speaker. During a recess, the House does not sit but Parliamentary business can otherwise continue as usual. Committees may meet, written Parliamentary questions can be asked and must be answered.”

The circumstances giving rise to the prorogation of Parliament in this instance are recorded in the Judgment. They are merely summarised here.

Circumstances for Prorogation

It appears that the Prime Minister advised Her Majesty to prorogue Parliament on 27 or 28 August 2019. What prompted the Prime Minister to follow that course is not clear. About the facts surrounding that advice, and the conversation between the Her Majesty and the Prime Minister, the Supreme Court has this to say:

“We know that in approving the prorogation, Her Majesty was acting on the advice of the Prime Minister. We do not know what conversation passed between them when he gave her that advice. We do not know what conversation, if any, passed between the assembled Privy Counsellors before or after the meeting. We do not know what the Queen was told and cannot draw any conclusions about it.”

Yet, the Supreme Court found that the Prime Minister’s advice to the Monarch was unlawful. This conclusion appears to be founded on a handwritten note by the Prime Minister on a memorandum he had been sent by the Director of Legislative Affairs in the Prime Minister’s Office in which the Director recommended prorogation “to commence within the period 9th to 12th September [2019]”.

In his handwritten comments, the Prime Minister had characterised the September 2019 session of Parliament as a “rigmarole … introduced … to show the public that MPs were earning their crust.” He also wrote that he did not see “anything especially shocking about this prorogation”.

The conjecture is that the Prime Minister sought to stymie Parliament in performing its legislative function and holding him to account in the lead-up to 31 October 2019 – the Brexit date – given that he is on record as having promised to take the UK out of the EU with or without a deal come 31 October 2019. But that intention is just that – rumour or suspicion.

The Supreme Court seems to have given it much weight in its judgment as it appears to have factored it into its formulation of the standard by which it says the lawfulness of the Prime Minister’s advice to the Monarch is to be measured. It does so by looking at the effect of the prorogation rather than at the Prime Minister’s supposed intention or motive for it. That done, the unlawfulness finding was unavoidable because the effect of prorogation is that Parliament cannot function.

To quote the from the judgment”

“While Parliament is prorogued, neither House can meet, debate and pass legislation. Neither House can debate Government policy. Nor may members of either House ask written or oral questions of Ministers. They may not meet and take evidence in committees. In general, Bills which have not yet completed all their stages are lost and will have to start again from scratch in the next session of Parliament. In certain circumstances, individual Bills may be “carried over” into the next session and pick up where they left off. The Government remains in office and can exercise its powers to make delegated legislation and bring it into force. It may also exercise all the other powers which the law permits. It cannot procure the passing of Acts of Parliament or obtain Parliamentary approval for further spending.”

So, if the lawfulness of prorogation is to be measured by the effect that it has on the business of Parliament, the Prime Minister simply had no escape hatch short of the separation of powers argument which the Supreme Court gave short shrift.

Prime Minister’s Argument and Court Finding

For the Prime Minister it was argued that the question of whether or not his advice to Her Majesty to prorogue Parliament was unlawful is not justiciable in the courts as that is a political question. Courts should respect separation of powers. The Prime Minister accounts to Westminster Parliament for his political conduct, of which this is one.

The UK Supreme Court gave short shrift to this argument in one short paragraph that cannot reasonably be faulted:

“[A]lthough the courts cannot decide political questions, the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it. As the Divisional Court observed in para 47 of its judgment, almost all important decisions made by the executive have a political hue to them. Nevertheless, the courts have exercised a supervisory jurisdiction over the decisions of the executive for centuries. Many if not most of the constitutional cases in our legal history have been concerned with politics in that sense.”

As regards the Prime Ministerial accountability to Parliament argument, the UK Supreme Court said:

“[T]he Prime Minister’s accountability to Parliament does not in itself justify the conclusion that the courts have no legitimate role to play. That is so for two reasons. The first is that the effect of prorogation is to prevent the operation of ministerial accountability to Parliament during the period when Parliament stands prorogued. Indeed, if Parliament were to be prorogued with immediate effect, there would be no possibility of the Prime Minister’s being held accountable by Parliament until after a new session of Parliament had commenced, by which time the Government’s purpose in having Parliament prorogued might have been accomplished. In such circumstances, the most that Parliament could do would amount to closing the stable door after the horse had bolted. The second reason is that the courts have a duty to give effect to the law, irrespective of the minister’s political accountability to Parliament. The fact that the minister is politically accountable to Parliament does not mean that he is therefore immune from legal accountability to the courts.”

Having found that the lawfulness or otherwise of the Prime Minister’s advice to Her Majesty to prorogue Parliament is justiciable, the UK Supreme Court then articulated the standard by which such lawfulness was to be tested. It said:

“For the purposes of the present case, therefore, the relevant limit upon the power to prorogue can be expressed in this way: that a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.”

The Supreme Court then found that, apart from merely characterising the continued sitting of what is already a lengthy session of Parliament as a “rigmarole”, the Prime Minister had advanced no reason – let alone a good one – for the prorogation of Parliament. On that ground, said the Supreme Court, on this standard the prorogation or advice to the Monarchy to prorogue Parliament was unlawful.

Quite how the Supreme Court could have come to this conclusion, having admitted to not knowing what had passed in conversation between the Prime Minister and Her Majesty, and to not knowing the content of what the Prime Minister told the Monarch, is not altogether clear.

But that is a subject for a detailed analysis, which this is not.

Read the Full Judgment UK Supreme Court Judgment – September 2019

Related documents: Written Arguments

Written Argument for the UK Prime Minister

Written Argument for Appellant in Miller Appeal

Written Argument for Appellant in Cherry Appeal

Written Argument for Lord Advocate in Miller Appeal

Written Argument for Ray MCcord – Intervenor

Written Argument for Counsel General for Wales

Written Argument for Sir John Major

Written Argument for Baroness Chakrabarti

By |2025-01-15T10:15:40+02:00September 26th, 2019|Cases of Interest, International|Comments Off on R (on the application of Miller) v The Prime Minister; Cherry and others v Advocate General for Scotland [2019] UKSC 41 (24 September 2019)
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