NON-RACIALISM AND/ OR EQUALITY?

The current debate within the DA regarding whether or not it should have supported the Employment Equity Amendment Bill is much more than an in-house tactical squabble: it goes to the very heart of the nature of our constitutional democracy: it is, in effect, whether or not our society should be based on the foundational principle of non-racialism.  

The argument generally posited by supporters of the EEA and B-BBEE is that it is impossible to redress grievances arising from past racial discrimination without using race as a yardstick. 

How can the effects of apartheid racialism be remedied without taking measures based on race?

This question was given long and careful consideration by the authors of the Constitution. On the one hand they decided unambiguously that our new system should be based on the principle of non-racialism. After all, had non-racialism not been the central principle in the long struggle against apartheid? On the other hand, they accepted, equally unambiguously, the imperative of advancing the equality of people or categories of people who had been disadvantaged by unfair discrimination in the past.   

Accordingly, section 9(2) of the Constitution mandates the state to adopt measures to promote the equality of unfairly disadvantaged people. However, in terms of section 9(3), in taking such measures, the state may not discriminate unfairly against anyone on a number of grounds including race. Section 9(5) states that any such discrimination is unfair - and therefore impermissible - unless it can be proved to be fair.

There are many measures available to the state to advance equality without discriminating unfairly on the basis of race. For example, it is entirely appropriate for the state to allocate disproportionate public resources to uplift disadvantaged communities through the provision of education, housing, healthcare and social services aimed at eliminating backlogs.  

The state can develop special programmes to advance categories of disadvantaged people - such as youth wage subsidies; it can provide tax incentives to companies to fast track the promotion of disadvantaged individuals; and it can take steps to support entrepreneurs from disadvantaged communities.  

The state is constitutionally required to establish public services and institutions that are broadly representative of the demography of the country - within the constraints of proper human resource management and the functionality of the institutions involved. It must also prohibit unfair discrimination by removing any impediments to the advancement of previously disadvantaged people. 

Finally, there is the non-racial and generally accepted mechanism that is used throughout the world through which advantaged people advance the less advantaged: it is called progressive income tax.

These very considerable powers are more than sufficient to ensure the advancement of equality without sacrificing the foundational principle of non-racialism.

Unfortunately, the balance struck by the Constitution was soon upset by race-based policies - most notably the EEA and BEE.

It was struck a further blow in 2004 in the landmark case of The Minister of Finance v Van Heerden. In its judgment the Constitutional Court inexplicably dispensed with the carefully constructed guarantees in section 9 and arbitrarily declared that any discrimination in terms of section 9(2) was 'presumptively fair' and need not be tested against sections 9(3) and 9(5). It did so despite the foundational status of non-racialism and the fact that non-discrimination is a non-derogable right that cannot be over-ridden even during a state of emergency.

In his separate judgment, Judge Albie Sachs took issue with the Court's approach. Although he concurred with the judgment and unambiguously affirmed the need for robust remedial action he famously observed that "...it is important to ensure that the process of achieving equity is conducted in such a way that the baby of non-racialism is not thrown out with the bath water of remedial action."

This is exactly the issue with which the DA is currently wrestling: should it throw out the baby of non-racialism with the bath water of remedial action?  

The ANC's approach to remedial action definitely dispenses with the baby.

Experience has shown that when it comes to the implementation of EEA and BEE, race cannot be a proxy for disadvantage. This is a game in which only those who are relatively advantaged can play, while the disadvantaged masses are left standing as spectators on the sidelines. The participants on the one team are the black elite and the emerging black middle class (the DA's newly targeted support base?) - and on the other, the 'non-designated' groups (NDGs) - whites, but increasingly Indian and coloured South Africans as well (the DA's traditional support base). The stakes are top and middle management jobs, lucrative tenders and large slices of the equity of private companies.  

The rules are simple: black South Africans progressively win, non-designated groups progressively lose. The score is predetermined regardless of the skill of the players: blacks 80, Indians 2, Coloureds 9, whites 9. The BEE team is fired up with a deep sense of historic grievance, a soupçon of revanchism and the happy prospect of easy jobs and share options. The NDG team doesn't understand - or doesn't want to understand - the rules of the game. They involve themselves in positional maneuvers, try to extend the match into extra time, and occasionally appeal forlornly to the ref. The big losers are the disadvantaged masses; unaware that their prospects for a better life are inexorably dwindling as the game progressively hamstrings economic growth.

The game has nothing to do with the promotion of equality. Many of the players on the black team are already more advantaged than those on the 'non-designated' team. A third of the white population has lower education qualifications than nine million black South Africans and lower incomes than more than a million of their supposedly disadvantaged competitors. How is equality promoted when already advantaged black South Africans are given automatic preference over less advantaged white, coloured and Indian South Africans?

It is also clear that EEA and BEE have not promoted real equality as intended in section 9(2). South Africa today is a more unequal society than it was in 1994. At the same time the foundational principle of non-racialism has been seriously eroded. Only 20 years after the abolition of apartheid racialism, South Africa is once again fast becoming the most racially dirigiste society on earth.

Non-racialism has been a core principle of the DA and its predecessors. It was also the main reason why minorities, in droves, switched their support from the vacillating NNP to the DA in 1999 and 2004. If the DA is now perceived to be diluting its opposition to unfair racial discrimination - if it is seen as a kind of ANC-lite - it will inevitably lose the loyalty of these core supporters. However, if it fails to assure potential black supporters that it is serious about promoting equality - if it is perceived as the protector of 'white privilege' - it will remain a party for minorities and never win more than 20% of the vote in future elections.  

The solution may be to take a clear stand in favour of the balanced approach prescribed by the Constitution: this would require unequivocal support for non-racialism as a core foundational principle - and not as a nice-to-have future goal. It would also require a commitment to use of the state's many powers to advance and empower those - regardless of race - who are truly disadvantaged. Time and future elections will show whether the DA has got the balance right.

Dave Steward is Executive Director of the FW de Klerk Foundation.

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