The anniversary of the demise of non-racialism

31 July 2023

Saturday 29 July was the 19th anniversary of the Constitutional Court’s judgement in Minister of Finance vs Van Heerden. It is a significant date because it marks a crucial point in the erosion of the foundational value of non-racialism and the unravelling of South Africa’s historic national accord.

Minister of Finance vs Van Heerden dealt ostensibly with the claim of Dr F J van Heerden, a member of the pre-1994 parliament, that the new parliamentary pension scheme discriminated unfairly against him and others in his position because employer contributions under the old scheme were not as generous as those under the new scheme. His claim was upheld by the Cape High Court but was overturned – quite correctly on its merits – on appeal by the Constitutional Court. However, the real significance of the case lies in the manner in which the Constitutional Court’s judgement – written by Deputy Chief Justice Dikgang Moseneke – dealt with the equality principle in Section 9 of the Constitution.

Judge Moseneke emphasised the foundational importance of equality and the need for remedial action to promote equality in accordance with Section 9(2), which states that “to promote equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination, may be taken.”

Then, in a judicial hop, skip and jump, he:

(1) rejected the contention that Section 9(2) remedial measures were presumptively unfair (which they clearly were not);

(2) dismissed the requirement in Section 9(5) to show that remedial measures do not discriminate unfairly; and then

(3) proclaimed the inherent fairness of remedial measures, provided only that they complied with the inner requirements of Section 9(2).

“I cannot accept that our Constitution at once authorises measures aimed at redress of past inequality and disadvantage but also labels them as presumptively unfair. Such an approach, at the outset, tags Section 9(2) as a suspect category that may be permissible only if shown not to discriminate unfairly. Accordingly, ‘If a measure properly falls within the ambit of Section 9(2) it does not constitute unfair discrimination’ and need not therefore be subjected to scrutiny in terms of Sections 9(3) and 9(5). (emphasis added)”

The internal tests that he identified were whether the measure:

“… targets persons or categories of persons who have been disadvantaged by unfair discrimination;

is designed to protect or advance such persons or categories of persons; and

promotes the achievement of equality.”

Apart from compliance with these tests, the only limitation placed by Judge Moseneke on remedial action was that “a measure should not constitute an abuse of power or impose such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal (of a non-racial, non-sexist society) would be threatened.” (Emphasis added).

What Judge Moseneke was, in effect, saying was that:

in the implementation of remedial measures under Section 9(2) some considerable harm could be done to people solely because of their race – a category that is not supposed to exist in our constitutional system;

by implication, some such harm might be “due” to people, presumably because they belong to a particular race – thus endorsing the entirely unacceptable notion of racial guilt; and that

the constitutional goals of “a non-racial, non-sexist society in which each person will be recognised and be treated as a human being of equal worth and dignity” was a long-term goal – and not something that could be claimed by all South Africans immediately.

The judgement arbitrarily dispensed with Sections 9(3) and 9(5), which declare peremptorily that “the state may not unfairly discriminate directly or indirectly against anyone on one or a number of grounds, including race…” and that “discrimination…is unfair unless it is established that the discrimination is fair”.

In his separate judgement, Sachs J took issue with Moseneke’s approach. Although he concurred in the outcome of the judgement and unambiguously affirmed the need for robust remedial action in terms of Section 9(2), he stated that Section 9(2) had to be read seamlessly together with Sections 9(3) and (5).

“…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. While I fully concur with Moseneke J that it would be illogical to permit a presumption of unfairness derived from Section 9(3) (read with Section 9(5)), to undermine and vitiate affirmative action programmes clearly authorised by Section 9(2), by the same token I believe it would be illogical to say that unfair discrimination by the state is permissible provided that it takes place under Section 9(2).”

The Van Heerden judgement soon became the fountainhead of subsequent jurisprudence on matters relating to transformation – and, in effect, provided a judicial licence for not having to test the fairness of racial discrimination arising from remedial measures under Section 9(2).

According to the Institute of Race Relations Index of Race Law, the ANC government has adopted 116 race-based laws since 1994, affecting a wide array of rights of South Africa’s racial minorities. This does not include the Expropriation Bill, race-based water quotas for farmers; and the regulations recently published under the Employment Equity Act (EEA). The EAA Regulations have, as their ultimate purpose, the reduction of minorities in all sectors of the economy to their share of the economically active population – irrespective of their qualifications, their experience, their contribution or their geographic location.

There is also little likelihood that there will be any cut-off date for this new and pervasive form of racial discrimination. As then Deputy President Ramaphosa told FW de Klerk in a 2014 exchange, “Race will remain an issue until all echelons of our society are demographically representative”. In other words, forever.

Much closer attention should also be paid to the internal tests prescribed by Judge Moseneke:

Most beneficiaries of affirmative action can no longer be described as “disadvantaged by unfair discrimination”. On the contrary, they are mostly middle-class people in the top 15% of income. Indeed, in some cases it is quite possible for more advantaged affirmative action candidates to be advanced ahead of less advantaged minority candidates.

The measures that the state has adopted have not been designed to protect or advance the truly disadvantaged and disempowered bottom echelons of the population – but have benefitted overwhelmingly the already advantaged 15% of the black population; and

As is clear from the fact that South Africa is widely regarded as the most unequal country in the world – those remedial measures under Section 9(2) have done little or nothing to promote equality.

The measures that the state should have taken to advance the truly disadvantaged segments of our society should instead have been steps to empower the great majority of disadvantaged South Africans through the provision of decent education, health and social services and, above all, through the creation of jobs. These steps could have been taken without unfair racial discrimination of any kind.

The foundational values in Section 1 of the Constitution are interdependent and mutually reinforcing. Diluting any one of them dilutes them all. As we know from our own deeply conflicted past, non-racialism is essential for human dignity. It is also essential for the core elements of equality before the law and equal enjoyment of all constitutional rights and freedoms.

Section 9 attempts to balance the need for the advancement of equality (section 9(2)) with the equally important need to prevent unfair discrimination,(sections 9(3) and 9(5)) because unfair discrimination undermines all the other foundational rights. Indeed, the whole constitutional settlement rested squarely on Sections 9(3) and 9(5) and the proposition that future majority governments would not discriminate unfairly against minorities and thus negate or dilute their access to all the other rights and protections in the Constitution.

On 29 July, we mourned the fact that it was on this day, nineteen years ago, that the baby of non-racialism was thrown out with the bathwater of remedial action.

Issued by FW de Klerk Foundation, 31 July 2023