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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