In a recent exchange on Twitter Helen Zille wrote, in a moment of exasperation, that there are “more racist laws today than there were under apartheid. All racist laws are wrong. But permanent victimhood is too highly prized to recognise this”.
Zille was self-evidently not making a comment trying to underplay either the number or severity of racial laws under apartheid, something hardly in dispute, but rather pointing out to their pervasive presence in modern day South Africa. The real sting of her comment lay in her description of them as “racist”.
Many of Zille’s opponents in the media and the DA, seized upon this social media misstep and took the opportunity to denounce her. Giving new meaning to the old saying “teaching your grandmother to suck eggs” this former Rand Daily Mail journalist was tediously lectured on the many racial laws that existed under apartheid.
Lol, there are more racist laws today than there were under apartheid. All racist laws are wrong. But permanent victimhood is too highly prized to recognise this.
— Helen Zille (@helenzille) June 21, 2020
Strikingly though, there was no serious effort to quantify the racial laws that the ANC government had put into effect in South Africa, Zille’s actual point. In an attempted rebuttal the investigative journalists of News24 could only come up with three pieces of post-1994 legislation that “made use of race”.
In a comment piece in the same publication Mbhazima Shilowa could only bring himself to mention two, and suggested that anyone who had an issue with them could challenge them in the Constitutional Court. Mmusi Maimane stated that any race-based laws in effect were but “Affirmative action laws” apparently “designed with a restoration and healing motive”.
Max du Preez meanwhile described the ANC’s race laws as “black empowerment” and “affirmative action” laws which he said were “both concepts completely in line with our constitution”. Adriaan Basson said you “only have to be able to count” to know Zille was tweeting nonsense, and her claim was “patently untrue”. Yet he too was unable or unwilling to add them up and produce a number.
Unlike Zille who had tweeted an instant opinion all these authors had had plenty of time to consider what they were saying. Yet all seemed unable to recognise, let alone acknowledge, the sheer ubiquity and perversity of racial “law” in present day South Africa.
The following essay will try to explain how that came about, and seek to give some indication of how extensive it is. Before doing so it is important to describe the ANC’s racial agenda, both in terms of where it came from, and what it is trying to achieve.
The ANC’s historic mission
While the ANC would develop a strikingly multi-racial leadership in exile, this was always built around a shared commitment to revolutionary racial nationalism. According to the thesis of Colonialism of a Special Type, as fully and eloquently expressed in the SACP’s 1962 programme The Road to South African Freedom, all the misfortunes of the black African majority in South Africa stemmed from the arrival of the first European settlers in 1652. What followed was three hundred years of robbery and exploitation through which this alien minority amassed wealth and privilege at the expense of a dispossessed and disadvantaged majority (“the people”).
In terms of such racial nationalist thinking any manifestation of racial inequality – in the form of the relative prosperity, educational attainment, or economic success of the advantaged ethnic or racial minority – is regarded as a comparative defeat and degradation for the deprived majority. Such “racial imbalances” are thus regarded ipso facto as intolerable, the intrinsically illegitimate “legacy” of an unjust past, one always stretching back hundreds of years. The kernel of this particular type of racialism is the feeling that any kind of ‘racial imbalance’ implies the ‘superiority’ of one race over another, and this cannot be countenanced.
This thesis involved the application to the local context of ideas widespread across the world at the time. At the time the ANC/SACP was convinced that the revolutionary moment had arrived and they would soon be able to seize power from the ‘white colonialists’ by force, and then implement their programme. This was again set out in the 1962 programme through the concept of the National Democratic Revolution. The SACP proposed that in order to “correct the legacy of colonialism” the judiciary, armed forces and civil service would be purged of racially disloyal elements; race quotas implemented in university admissions; stringent measures put in place to ensure state institutions were “fully representative of the nature of the population of South Africa”, and various actions (from land seizures to nationalisations) pursued to ensure that the wealth of the country was returned to “the people” from whom it had been “stolen”.
The two concepts were adopted by the SACP (which meant by most of the ANC leadership as well) in late 1962 and then by the ANC as an organisation in 1969. This ideology is coherent, powerful and compelling. Not only does it provide an explanation for the majority’s predicament and a programme to correct it but, as importantly, the implementation of the NDR provides a motor through which members of the liberation movement can realise their material ambitions.
In the late 1980s and early 1990s the ANC/SACP was finally prevailed upon to accept that an armed seizure of power was not a credible option in the short to medium term, but a negotiated entry into power was there for the taking, provided certain assurances were provided to the white minority and the Western powers.
The ANC though remained committed to the main goals of the national revolution, even as socialism was discarded. The ANC knew that thanks to its heroic opposition to apartheid and white rule it was certain to win the first non-racial national elections in South Africa and would, moreover, likely secure a decades-long electoral mandate.
The strategy decided upon then was to pursue its goals incrementally, through different stages, over a twenty to twenty-five-year period. The first priority of the ANC in the initial stages was facilitating a smooth transfer of power, while securing control over the legislature and executive and the drafting of the final constitution. The next stage was the capture of the state machinery and parastatals, and the neutralisation of the judiciary. Finally, the ANC would use state power to transform racial employment and ownership patterns across society, including of agricultural land.
Although the ANC would make short term concessions and assurances in the negotiation process, and after, they would always make sure that nothing they said or conceded would provide any long term obstacle towards the objective of “effectively intervening to advance the process of redressing the racially accumulated imbalances in all spheres of life”.
In other words what the ANC aimed for, from the start, was progressively advancing and enforcing “demographic representivity” – alternatively, “proportional representation” or “equality of outcomes” - in all institutions and fields of endeavour by progressively limiting the share held by the white population (and ultimately other racial minorities) to their proportion of the total population, or less.
The ANC has pursued its goals through salami tactics, slice by slice, or what Cyril Ramaphosa is reported to have once described as ‘frog boiling’. In his memoirs the late IFP MP Dr Mario Oriani-Ambrosini recounted that during the negotiations over the final constitution Ramaphosa had told him “of the ANC's 25-year strategy to deal with the whites: it would be like boiling a frog alive, which is done by raising the temperature very slowly…. He meant that the black majority would pass laws transferring wealth, land, and economic power from white to black slowly and incrementally, until the whites lost all they had gained in South Africa, but without taking too much from them at any given time to cause them to rebel or fight."
The “laws” used by the ANC to advance this agenda have included most obviously certain constitutional provisions, legislation, and (initially) white papers setting out binding government policy. Yet the ‘law’ has often been shifted in favour of the national revolution not by the introduction of new statutes, but by perpetual reinterpretation of previous ones. If the ANC was successfully challenged in the lower courts, a Constitutional Court dominated by its ideological allies would always be at hand to step in and get the NDR back on track.
The ANC also sought, more-or-less successfully, to capture, penetrate or neutralise most centres of power in society. A law may be introduced to allow for greater statutory control over an institution, the “representivity” principle incorporated into how a governing body was to be selected, and then, as the final coup de grâce, an ANC cadre deployed to head it. That cadre would then be bound by party discipline to implement the ANC’s racial and self-enrichment agenda, whether in appointments, tenders, or the granting of licenses. So, binding party policy must also be taken into account as well.
If you wish to start adding up the ANC’s race laws – and see how they all fit together - all these need to be enumerated.
Transforming the state and public institutions
A major priority of the ANC in the negotiations was keeping the path clear towards the capture of the state machinery and its racial transformation. The language used is somewhat slippery, but the ANC’s draft 1991 Bill of Rights clearly envisaged the rapid implementation of demographic representivity in the “public service, defence and police forces and the prison service”, as well as the judiciary.
Its negotiators achieved a reference in the constitutional principles of the interim 1993 constitution to the public service being “broadly representative” of the South African community [1]. Although hedged in by numerous other countervailing requirements (the public service was also meant to be “efficient, non-partisan” and “career-orientated”!) the ANC would aggressively exploit this particular clause in order to achieve its racial and political objectives.
The Reconstruction and Development Programme White Paper of 1994 [2] stated that “All levels of government will be expected to implement a policy of affirmative action to ensure that the Public Service is representative of all the people of South Africa, in racial, gender and geographical terms.” In 1995 the National Defence White Paper [3] and Intelligence White Paper [4] also incorporated “broad” representivity as a goal. The White Paper on the Transformation of the Public Service [5] stated that “within four years all departmental establishments must endeavour to be at least 50 percent black management level”.
The ANC January 8th Statement of 1996 [5] signalled the party’s determination to now set about capturing the state machinery. It defined the existing incumbents of the state as inherently disloyal, whose resistance would need to be overcome as they wished to “cling to the benefits and the practices of apartheid”. It declared that it was “not sufficient that we have elected organs of government which are accountable to the people. It is also critically important that the instruments of governance be structured and motivated to fulfil the democratically expressed will of the people.”
As would soon become evident this involved not just rapidly changing the racial composition of the state but also extending party control over it, as the ANC was the organisation that “embodied” that will. From late 1995 the ANC made clear that it was going to aggressively curtail the career paths of (non-ANC) white public servants, army officers, policemen, and so on. It then encouraged them to leave state employment through a “voluntary severance package” scheme introduced in May 1996 [6]. Tens of thousands of state employees, including some 17 000 teachers (mainly white, Coloured and Indian), were successfully packaged off over the next few years. The ANC also began making crude political appointments to senior positions in government departments and the parastatals.
Section 195 of the final Constitution [7], adopted in 1996, stated that “Public administration must be broadly representative of the South African people, with employment and personnel management practices based on ability, objectivity, fairness, and the need to redress the imbalances of the past to achieve broad representation.” More crucially it removed many of the practical restraints contained in the interim one on the ability of the ANC to take control over the state machinery, namely by abolishing the constitutionally enshrined power an independent Public Service Commission had wielded over the career incidents of public servants.
An ANC discussion document on the national question, released in mid-1997, called for a continued “battle for African hegemony” and the application of the principle of “African leadership” to party, state and society [8]. The ANC’s draft Strategy & Tactics [9] released at the same time, stated that “it is a critical part of the ANC's programme to change the doctrines, the composition and the management style of all these structures [civil service, the judiciary, the army, the police, the intelligence structures] to reflect and serve South African society as a whole. This includes the involvement of more and more of those who were discriminated against, especially blacks, women and the disabled, and a particular sensitivity to their needs and interests. The principles to guide this are contained in the constitution and relevant new statutes.”
The ANC now simply redefined “broad representivity” to mean strict “demographic representivity”, with all other of the considerations that were supposed to apply to public service appointments rendered subordinate to this goal. Given the racial demographics of South Africa the application of this principle mechanistically replaced white with black domination. The draft White Paper on Affirmative Action in the Public Service [10] described the racial composition of the South African population as being 75% African, 13% White, 9% Coloured and 3% Indian. It then declared that “The Constitution requires therefore that the Public Service will strive to reflect these proportions in its staffing in order for it to be representative.”
The White Paper for the Transformation of the Health System in South Africa of 1997 [11], introduced by Health Minister Nkosazana Zuma, listed among its goals and objectives ensuring that the “composition of human resources in the health sector reflects the demographic pattern of the general population.” The Department of Health itself would “be representative, i.e. its staffing pattern will reflect the national demographic structure”. Medical schools meanwhile would be required to implement race quotas with their intake reflecting the “demographic composition of the country”.
The White Paper on Transforming Higher Education [12] of July 1997 extended the principle of representivity to the universities and Technikons. They would now be required to ensure that “the composition of the student body progressively reflects the demographic realities of the broader society”. All institutions would be required “to develop their own race and gender equity goals and plans for achieving them, using indicative targets for distributing publicly subsidised places rather than firm quotas.” The preamble of the Higher Education Act [13], which strengthened state control over the universities, listed among its goals ensuring “representivity and equal access”. The Council of Higher Education set up in terms of the Act was also required to be racially representative. Almost all formerly white Universities and Technikons would subsequently implement and adopt race quotas governing admittance to their institutions, and particularly the most desired degrees.
The Public Service Laws Amendment Act, no. 47, 1997 [14] formally stripped the Public Service Commission of its powers over the career incidents of public servants (transferring these to the political heads of department) and, in response to a court judgment, formally replaced “merit” with the promotion of representivity as the main criterion to be applied in appointing and promoting public servants. “Representivity” was thus used like a can-opener by the ANC to open up the state to political patronage and clear the way for ANC cadres to take up all the most plum positions.
At its conference in Mafikeng in December 1997 the ANC formally adopted the Strategy & Tactics document, as well as a resolution on the National Question [15]. This endorsed the approach of the July discussion document. It also called for more rapid implementation of affirmative action, focused on Africans, and for the “employment practices within Ministries and government Departments” to be monitored to ensure they “reflect the demographic aspects of our population”. In terms of the doctrine of democratic centralism this policy was binding on all ANC cadres and structures, wherever they were located.
The conference also adopted a resolution on Cadre Policy, the aim of which was to ensure central party control over all centres of power in state and society. In late 1998 the ANC leadership duly adopted a Cadre Policy and Deployment Strategy [16], in terms of the resolution. This stated that the ANC “must strengthen our leadership of all parastatals and statutory bodies, in order of importance and the priorities and programme of the NDR” as well as “all other sectors of social activity” including in the “economy, education, science and technology, sports, recreation, arts and culture, mass popular organisation; and mass communication.” The responsibility of cadres, wherever deployed, was to “use whatever power they have to ensure that transformation policies are accepted and implemented.”
The Employment Equity Act [17] was passed by parliament in 1998, having been introduced the previous year. This enshrined the principle into law that all institutions would have to strive towards reflecting the demographic composition of society (so-called “equitable representation”). In the state and parastatal sectors it provided the legislative basis through which the ANC cadres could implement the party’s transformationist goals. Every state and parastatal institution would now draw up an “Employment Equity Plan” – essentially a little race law specific to that institution – setting out the racial targets to be achieved in the next period. This required both the racial classification of all employees, and racial discrimination in promotions and appointments in order to achieve the desired outcome.
The Employment of Educators [18], Correctional Services [19] and State Information Technology Agency Acts of 1998 [20] also incorporated the principle of “representivity” in appointments, in schools, the prison service, and SITA, respectively, as did the Defence Review [21] for the SANDF.
The judiciary was not spared from this process either. Although it was not able to pension off judges the ANC insisted upon a Constitutional Court whose judges it could pick (albeit with some initial restrictions) to sit atop the existing judiciary, and which would have the final say on all constitutional questions. The intention was to make sure that the constitution and the law never became a serious obstacle to giving final effect to the goals of the national revolution. The ANC also incorporated into the 1996 Constitution [22] the requirement that “The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed”.
The Judicial Services Commission, which oversaw the appointment of judges, was also expanded to include many more political appointees. In May 1998 Justice Minister Dullah Omar stated in Parliament that it was “imperative that both the Judicial Services Commission consciously and deliberately embark upon a programme which will transform our courts, so as to make them representative in the shortest possible period of time”. In October 1998 the ANC majority on the commission asserted itself and adopted a policy [23] of prioritising African leadership over, and demographic representivity on, the bench. This required removing from consideration most advocates, including many of the most brilliant silks, as they were of the wrong colour. The Magistrates Commission would also apply [24] similar criteria when it came to the appointments of magistrates.
The ANC also brought the prosecution service under its control, firstly, by establishing a National Prosecuting Authority, and, secondly, by deploying ANC MPs to head it. The National Prosecuting Authority Act itself stated [25] that the “need for the prosecuting authority to reflect broadly the racial and gender composition of South Africa must be considered when members of the prosecuting authority are appointed.”
The race and cadre policies of the ANC were then applied systematically at local government level following the creation of the new municipal system. The Municipal Demarcation Board set up in terms of the Municipal Demarcation Act of 1999 [26] was also required to be “representative” and a (white) ANC politician was appointed as chairman. The board reduced the number of municipalities hugely and ensured that outside of KwaZulu and the Western Cape they almost all had a substantial inbuilt ANC majority. In Pretoria the board had to extend the boundaries of the new metro municipality far into the neighbouring North West province in order to achieve this particular goal.
In municipalities controlled by the ANC after the 2000 local government elections both the executive mayors and their municipal managers were deployed by the party. A major priority was racial transformation and the removal of white managers, technical staff, engineers, and so on. In Port Elizabeth, for instance, the ANC immediately moved to retrench 144 senior white managers, at great financial cost. In a document [27] motivating for this move –which gave expression to the general ANC sentiment at the time - the local party structure explained that “The cost of retaining senior managers will be exorbitant, greater than the option of giving ‘golden handshakes’. The experience that these managers have is mostly not relevant and necessary for a democratic local government, as most of these white male managers have been captains of apartheid. They cannot now realistically be expected to become champions of democracy.” This was a pattern repeated across the country although in a city like Johannesburg the initial purge had already occurred some years before.
Racially driven cadres now used the powers granted them by the Employment Equity Act to continue to squeeze out white South Africans from their institutions. For instance, the SAPS under Jackie Selebi introduced an Employment Equity Plan in 2000 [28] that set racial targets (50/50 at management level and 60/40 at other levels) and a 70/30 quota on recruitment at all levels. These targets were subsequently ratcheted upwards. The Intelligence Services were exempted from the EE Act, but ministerial regulations were issued [29] in this regard in 2003.
Within five years of first being elected into office the ANC had rid the state -at national and provincial level - of much of its most precious managerial, professional and technical skill. It had abolished the merit system in the appointment of civil servants, and most requirements for formal qualifications, and replaced this with a crude political patronage system. It had then exported these policies both to the parastatals and to local government after 2000. Apart from profiting a multiracial ANC elite hugely the effect of all this was to gut the capacity of the state while strengthening the private sector.
Transforming society
It was never the intention of the ANC to stop here and limit the pursuit of their racial nationalist objectives to “just” state and parastatal organisations, as Afrikaner nationalists had done vis-à-vis the English post-1948. The ANC’s 1991 draft Bill of Rights was quite clear about the necessity of a future ANC government enforcing the goals of the national revolution across the length and breadth of society. The section on “positive action”, which contained a number of oblique references to the representivity principle, stated that “legislation may be enacted requiring non-governmental organisations and private bodies to conduct themselves in accordance with the above principles.”
The Equality clause in the 1996 Constitution’s Bill of Rights [30] eventually stated that “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.” It also binds, in certain circumstances, natural and juristic persons. The ANC, and their ideological allies in the Constitutional Court have, quite understandably, interpreted this clause according to the original intention behind it. Namely, all institutions in society can be required by the state to progressively enforce equality of outcomes.
From 1997 the ANC moved to begin the enforcement of race quotas in representative sports teams, with children an early and defenceless target for such race discrimination. The National Sport and Recreation Act of 1998 [31] sought to put in place “measures aimed at correcting imbalances in sport and recreation”. The Minister’s ability to dictate racial targets was further strengthened by the 2007 National Sport and Recreation Amendment Act [32]. Most sporting codes were not spared from the ravages of cadre deployment either, with political commissars being regularly levered in to run sporting codes.
The Employment Equity Act of 1998 then did not just allow the ANC cadres deployed into state and parastatal institutions to vigorously implement demographic representivity, it also initiated the process of requiring that all private sector organisations do the same. All employers over a certain size also had to racially classify their staff, count their proportions, and then submit plans for changing these to the Department of Labour.
The law was, initially, not too onerous. This was just an early slice, and the ANC’s priority at the time remained the capture of all state institutions. Other pieces of legislation in 1998, which explicitly allowed for some measure of racial discrimination in favour of the black majority were the Competition Act [33] (exemptions from competition law), the Marine Living Resources Act [34] (granting of fishing permits), the National Empowerment Fund Act [35] (granting of loans), and the National Forests Act [36].
The Private Security Industry Regulation Act of 2001 set up [37] a regulatory authority for the private security industry. One of the early goals listed was to promote the “empowerment and advancement” of black South Africans. The director of the authority was required to give preference to black South Africans in appointments with the goal of ensuring racial representivity. The Adult Basic Education and Training Act 52 of 2000 [39] also required the principle of “racial representation” be applied to the filling of any post in an adult educational establishment.
Transforming the economy
By 2000 the ANC had largely removed from power “the old classes and strata” while bringing all state and parastatal institutions under the control and direction of the party. The ANC could now turn its attention to the next stage of the national revolution, namely the transformation of the private sector, and the economy.
An early step in this direction was through state and parastatal procurement. Control of state institutions gave ANC deployees influence over the award of tenders, most infamously in the arms deal. The Defence Related Industries White Paper [40] of 1998/9 stated that government was committed to “affirmative action being applied to defence related industries and in a broader context, to economic empowerment of previously disadvantaged groups.” This turned out to be code for cutting in the party elite in on the corrupt deals being negotiated with British, German and French arms companies.
Government contracts were initially meant to be awarded on the basis of technical quality and price alone, something which hugely complicated the awards of the arms deal contracts to those companies which had offered the largest bribes. The Preferential Procurement Policy Framework Act 5 of 2000 [41] sought to address this problem by introducing an 80/20 system (price/race) for smaller contracts, and a 90/10 one for larger ones. The Industrial Development Amendment Act of 2001 required the IDC to promote “economic empowerment” of black South Africans, and also to “implement procurement and outsourcing policies and programmes that encourage economic empowerment”.
The 2001 Gas Act [42] required that the gas regulator be “collectively representative” of society, and that the minister be able to issue regulations on “mechanisms to promote” black South Africans in the industry. Extensive regulations [43] in this regard were gazetted in 2007. The Land and Agricultural Development Act of 2002 [44] stated that one of the objectives of the bank was to help increase agricultural land ownership by black South Africans.
The serious, co-ordinated move towards transforming the economy came in 2002. In his address to the ANC’s national conference that year President Thabo Mbeki declared that:
“The bulk of our economy, including the land, remains predominantly white-owned. Wealth, income, opportunity and skills continue to be distributed according to racial patterns … in all other areas of social activity, whether they relate to the composition of the professions, participation in different sports codes, environmental questions, or access to public hearings in our legislatures, we will find the same racial imbalances as in all areas of our national life.”
Mbeki told conference that the ANC should “engender the understanding that it is natural that an economy in an African country that South Africa is, should, in its ownership, management and skills, reflect the active and meaningful participation of Africans in particular and blacks in general”.
The ANC leadership now sought, and received, a mandate from the party to move into the next stage of the national revolution, and effect the racial “transformation” of the economy. Numerous resolutions were adopted in this regard [45]. The new preface to the ANC’s Strategy & Tactics [46] stated that the “elimination of apartheid property relations” through the Africanisation of “ownership and control of wealth” was a “critical element of the programme for national emancipation”. In terms of the principle of democratic centralism all ANC cadres were now required to defend and implement these resolutions.
Though it was commonly assumed in 1996 that Section 25 of the Constitution [47] was there to protect property rights, if you read it carefully and in the light of the ANC’s prior intentions and later actions, it is evident that this section was carefully engineered to be flipped on its head, when required. By this point too, the ANC had, thanks to floor crossing legislation, a comfortable two-thirds plus majority, something it would retain up until 2009. It was pointless through this period to challenge the constitutionality of any core part of the ANC’s racial programme.
The Mineral and Petroleum Resources Development Act [48] of 2002 brought all mineral and prospecting rights under state (and party) control. The Act gave the ANC government huge leverage over the mining industry, which the ANC would use for the usual dual purposes of self-enrichment and racial transformation. The 2002 Mining Charter [49] required that companies achieve 26% ownership by black South Africans of mining industry assets within ten years, among numerous other racial requirements. Informally, the ANC cadres who ran the Department of Mineral Resources steered such ownership transfers towards politically connected individuals.
The lynchpin legislation of the ANC’s economic transformation programme was the Broad-Based Black Economic Empowerment Act of 2003 [50]. The Act defined B-BBEE to mean the “economic empowerment of all black people” through measures including increasing black management and control of productive assets, facilitating ownership, achieving “equitable representation” in all occupational categories and levels in the workforce, and preferential procurement, among others. The Act empowered the Minister to issue codes of good practice and to publish transformation charters. The DTI gazetted the BEE Codes of Good Practice [51], in terms of the act, in February 2007. Sector charters were subsequently gazetted for Agri-BEE [52]. Financial Sector [53], ICT [54]. the Property Sector [55], Chartered Accountancy [56]. Integrated Transport [57], the Forest Sector [58], Marketing Advertising and Communication [59], the Tourism sector [60], and the Petroleum and Liquid Fuels Sector [61].
The brilliance of this approach was that in return for some say over the pace of implementation, the private sector companies now bought into the racial transformation project. The companies higher up the food chain started enforcing various racial requirements – in employment, procurement, and ownership - among those providing services and goods to them, and so on down the food chain.
The ANC’s greed had counterbalanced its ambitions, and the patronage-based public service it had created had an increasingly hard time actually performing any functions. Now though so-called BEE would be implemented with typical private sector efficiency, with the heads of HR departments often operating as race commissars in their institutions, issuing dictates as to the skin colour of those that could or could not be promoted and appointed.
At this time the ANC government passed numerous pieces of legislation introducing racial requirements wherever the state could put itself in a position to grant licenses, this being a classic means of control and coercion. The Petroleum Pipelines Regulatory Authority set up in terms of the Petroleum Pipelines Act [62] was empowered to use licensing to promote black South Africans. The minister could issue regulations in this regard as well. This was done in 2008. The Petroleum Products Act was amended [62] to allow the Controller of Petroleum Products to apply racial requirements when it came to awarding of licenses here as well.
In 2004 the National Gambling Act [63] incorporated racial provisions when it came to the awarding of new gambling licenses. In 2005 the Electronic Communications Act 36 [64] required that Icasa also apply racial considerations when it came both to the issuing of licenses. The Authority was also allowed to by regulation, “set a limit on, or restrict, the ownership or control of an individual licence”, in order to promote the ownership and control of electronic communications services by black South Africans. The National Ports Act [65] incorporated numerous racial objectives and the regulations issued in 2007 stringent racial requirements on various matters. The Department of Public Enterprises issued regulations [66] on how Black Economic Empowerment criteria would apply to the disposal of state and parastatal owned property.
The ANC continued to pursue pure racial proportionality at all levels of the state. In late 2006 the SAPS introduced yet another draconian Employment Equity Plan [67] aimed at achieving this objective at top management level in the 2007 to 2010 period.
The post-Mbeki era
The last stage of the national revolution was the direct expropriation of fixed white-owned property, including land. In 2007 this was already in the sights of the ANC government of Thabo Mbeki. A draft Expropriation Bill [68] was prepared to give effect to the “promise” contained in Section 25(2) of the constitution and bring about “equitable access to all South Africa’s natural resources”. Legislation was thus needed to facilitate access not only to land but to other natural resources.
The plan to advance to this most sensitive stages of the national revolution was derailed however by Jacob Zuma’s successful challenge to Thabo Mbeki for the ANC Presidency in Polokwane, and the defenestration of almost the entire senior ANC leadership. The new Zuma leadership was persuaded to drop the Expropriation Bill as it still had to work its way into power. With the Mbeki leadership gone the ANC also lost the ideological drive and subtle strategic thinking which had moved the national revolution forward so quickly and smoothly, while avoiding certain of the errors made by other liberation movements previously (such as overspending).
Zuma’s backers in the SACP and COSATU lacked Mbeki’s particular interest in promoting the black bourgeoisie, while the ANC Youth League went about loudly and counter-productively demanding outright nationalisations. Zuma himself would be mostly concerned with securing his position through ethnic patronage, and facilitating the business dealings of the Gupta family.
Nonetheless the ANC remained completely committed to the NDR. The Strategy & Tactics [69] adopted at Polokwane is one long reaffirmation of the concept. It states in different places that the ANC must ensure “that state institutions reflect the demographics of the country”, “all centres of power and influence and other critical spheres of social endeavour” must “become broadly representative of the country's demographics”, and that the improvement in “Black and female ownership and control of wealth and access to management and many professions is still limited, with overall proportions which are inversely related to the country's demographics. This is more starkly reflected in terms of land ownership. As such, while progressive forces have attained political power, economic power remains largely in the hands of the white minority.”
It revealingly also noted how “Many leaders and cadres of the movement are found in positions of massive influence in the executive, the legislatures and state institutions. By breaking the glass ceiling of apartheid, the liberation movement opened up enticing opportunities for its cadres in business and the professions.”
The 2013 Employment Equity Amendment Act [70], further strengthened the original Act’s provisions for enforcing demographic representivity in the private sector. The Broad-Based Black Economic Empowerment Amendment Act [71], along with the new ministerial codes, made that legislation considerably more crudely racialist. Many smaller white-owned businesses now came under huge pressure to give up majority ownership if they were continue to secure public or private sector contracts.
In 2003 the Judicial Matters Amendment Act 16 [72] granted the minister to determine policy for the appointment of liquidators, including on the racial grounds. A race quota system was subsequently implemented through regulations issued in 2014 but these were struck down by the courts.
In 2015 the Department of Trade & Industry launched a “Black Industrialists Programme” the purpose of which was to create an “industrial owning class with which we can drive progressive economic transformation. In 2017 Treasury introduced new racial requirements in regulations [73] issued under the Preferential Procurement Policy Act of 2000.
In December 2017 the ANC national conference adopted a resolution [74] declaring that “Expropriation of land without compensation should be among the key mechanisms available to government to give effect to land reform and redistribution.” The Draft Constitution Eighteenth Amendment Bill [75] is now steadily making its way through parliament. As the ANC helpfully explained in a press release “the return of the land to the rightful owners, who are the indigenous Blacks and Africans in particular from whom the land was stolen is a critical imperative.”
The ANC also brought the legal profession under greater state control through the Legal Practice Act of 2014 [76]. The ostensible goal of the legislation was to restructure the legal profession so that it “broadly reflects the diversity and demographics of the Republic”. The regulations issued in terms of the Act in 2018 [77] imposed a strict race quota on who advocates and attorneys could elect as their representatives on the Legal Practice Council set up in terms of the Act.
The 2018 Competition Amendment Act [78] introduced a series of new racial clauses into the legislation. The effect of these were to give the minister the lever of competition law to try and drive the ANC’s racial ownership agenda. The Employment Equity Amendment Bill of 2018 [79] would also further scale up the Minister of Labour’s coercive power to enforce demographic representivity in private sector companies. The 2019 Property Practitioners Act [80] contains numerous racial requirements in order to advance the “transformation” of the sector. The Mining Charter III [81] also once again ramps ups racial requirements. The National Health Insurance Bill [82] has a racial and expropriatory purpose and will bring the private healthcare sector under direct state control and all the racial and cadre requirements that come with that.
Not even the Covid-19 crisis could divert the ANC from its racial agenda. The relief aid [83] provided by government contain racial restrictions on who may receive it, something upheld by the courts. There is no indication either that the ANC is relenting from the pursuit of the goals of the national revolution. In recent remarks to a virtual parliament Cyril Ramaphosa commented that the B-BBEE “policy thrust” of the government would continue, and if anything, would be enhanced.
Conclusion
The report of the Truth & Reconciliation commission lists 17 race-based laws passed by the parliament of the Union of South Africa between 1910 and 1948 in pursuit of racial segregation. It lists a further 26 passed by the National Party between 1948 and the passage of the Extension of University Education Act No 45 giving effect to apartheid. After that there are a multiplicity of laws passed related to the government’s policy of separate development.
These laws were all documented, opposed, and their pernicious effects recorded, by critical journalists, academics, and opposition politicians, at the time. Books were published in the 1970s documenting and describing them all. By the late 1970s the National Party itself had lost confidence in the project of separate development and recognised that the harsh racial discrimination against black South Africans in the labour market was economically destructive, and ultimately a threat to white survival. From then on successive National Party governments started abolishing racially discriminatory laws – beginning in the economic sphere – and by the early 1990s there were none left on the statute books.
For a few precious years in the early to mid-1990s South Africa was, for the first and last time, a country without operative racial laws. Over the past 26 years though the ANC has put in place a web of binding racial requirements through constitutional provisions, legislation, white papers, regulations, charters, and party resolutions; as it has sought to advance through the different stages of the revolution, towards the goal of pure racial proportionality, everywhere.
The article above has documented some eighty of these, but this is not a complete list. It lists only a handful of regulations. By one count the ANC has incorporated racial requirements into ninety acts of parliament, excluding the Constitution, though many of these relate to the application of the “representivity” principle to the boards of statutory bodies. In addition, there are a number of judgments issued by the Constitutional Court, bending the interpretation of the Constitution in favour of the national revolution.
One of the characteristics of the ANC is that it demands moral compliance with its racial project. Every institution in society has to formulate a little “race law” of its own, setting out how it expects to achieve the racial goals the ANC has set for employment, and then submit an annual report in this regard to the Department of Labour. In 2019 the department received 58 of these reports from national government, 133 from provincial government, 184 from local government, 133 from State-owned enterprises, 298 from educational institutions, 566 from non-profit organisations, and 26 113 from the private sector.
Zille’s remark was certainly implausible and hyperbolic. But as it turns out, she was not (far) wrong. The real problem, inadvertently highlighted by the controversy, is that such a large part of the media, civil society, and the DA do not see the ANC’s race laws as a problem. In fact they are barely conscious that they exist at all. And yet it is simply impossible to understand South Africa’s predicament without reference to the ANC’s racial project, the plunder that this enabled, and the institutional and economic destruction that resulted.
