The Trump Executive Order on South Africa: An analysis (II) WRITTEN BY Dave Steward

[Nat Quinn]

In this article I shall deal with the second charge in the US Executive Order of 7 February 2025 that the South African government has adopted “countless policies designed to dismantle equal opportunity in employment, education, and business.”

According to the ANC’s 2007 Strategy & Tactics documents, “a critical element of the programme for national emancipation should be the elimination of apartheid property relations. This requires (inter alia): equity and affirmative action in the provision of skills and access to positions of management.”

The goal is demographic representivity in all aspects of the economy – including ownership of property and land – and demographic representation at all levels of management and employment in the private and public sectors. According to documents from the 2022 ANC Policy Conference

“A continuing element of democratic transformation should be a systematic programme to correct the historical injustice and affirm those deliberately excluded under apartheid – on the basis of race, class and gender. The need for such affirmative action will decline in the same measure as all centres of power and influence and other critical spheres of social endeavour become broadly representative of the country’s demographics.

In pursuit of this objective, the ANC government has, according to the Institute of Race Relations, adopted no fewer than 118 race-based laws since 1994.   In a 2023 study, Afriforum divided race-based legislation into three categories:

– bona fide laws that prohibit unfair discrimination in access to services and accommodation;

– 57 laws that require demographic representivity on the boards and staff of statutory organisations and holders of an extensive array of state licences; and

– laws affecting employment equity, affirmative action and state procurement, primarily the Employment Equity Act, the Broad-Based Black Economic Empowerment Act and the Preferential Procurement Policy Framework Act of 2000.

The business organisation Sakeliga divides Black Economic Empowerment into three phases. The first non-statutory phase which began in 1994 and was characterised, in effect, by the voluntary transfer by leading South African companies of tens of billions of rand to members of the ANC elite.

The second phase was introduced in 2003 following the adoption of the Broad-Based Black Economic Empowerment Act.   It required any company, wishing to do business with the state, to comply with a complex scorecard measuring black ownership and control percentages; racial management and employment targets; preferential procurement from BBBEE rated companies; skills development – and residual requirements.

The targets were steadily ratcheted up with the passage of time. Although they related only to companies doing business with the state, the requirement for procurement from BBBEE-rated companies had a cascading effect on many supplier firms that did not have state contracts.

The third phase, introduced by the Employment Equity Amendment Bill 2024, seeks to extend BBBEE requirements to all companies with more than 50 employees by requiring them to comply with employment targets at the top management, senior management, middle management; professionally qualified level; and skilled technical level. Separate targets are set for 18 sectors of employment throughout the private and public sectors.  

Draconian penalties can be imposed on companies that fail to comply with the requirements of the Act – including fines of R1,5 million – or 2% of the employer’s turnover for the first offence and R1,8 million or 4% of turnover for subsequent offences. It is expected that targets for non-white employment will be steadily ratcheted up until the goal of demographic representivity has been attained in the private sector – as it had already been attained in the public sector.

At the same time, the education space open to white South Africans has been progressively limited by the imposition of quotas for white students wishing to study some degrees, such as medicine, and also by the progressive erosion of the constitutionally guaranteed right of Afrikaans-speaking students to study in the official language of their choice.  

The new Basic Education Laws Amendment Act will accelerate this process by limiting the right of school governing bodies to determine the language of tuition in schools.   In 1994 there were five universities that offered Afrikaans as their principal language of tuition. It is expected that, in the near future, Afrikaans tuition at university level will, for all practical purposes, have disappeared. The BELA Act now poses an existential threat to government schools that still provide tuition in Afrikaans.

The racial discrimination inherent in all these measures will not be a temporary measure to address the results of past discrimination – but will, instead, for all practical purposes, be permanent. This is because the ANC’s stated goal of broad representivity in all “spheres of social endeavour” is unlikely to be reached within the foreseeable future – inter alia because of the abysmal failure of the education system to provide decent basic education to 80% of South Africa’s children. At the same time, the ANC makes it clear that affirmative action will continue forever because of the need to continue to address “all inequalities that may persist.”

This is in direct breach of the article 4 of the International Convention on the Elimination of all Forms of Racial Discrimination (CERD) which states that

“If distinctions between protected and other groups in society are being made for the sole purpose of correcting prior existing inequalities, then those actions shall not be considered discriminatory under the Convention so long as those corrective measures are only temporary re-alignments, as opposed to creating new permanent rights.” (emphasis added)

The ANC’s justification of continuing race-based legislation

The ANC justifies continuing race-based legislation as unavoidable in its efforts to promote equality by addressing the inequalities and oppression of the past. As DIRCO puts it in its statement of 8 February – the US executive order “fails to recognise South Africa’s profound and painful history of colonialism and apartheid”.

In an exchange of open letters with FW de Klerk in February, 2014, then Deputy President Cyril Ramaphosa insisted that

“The equality clause (S.9 of the Constitution) is in fact fundamental to the transformation agenda and is not contradictory to the National Democratic Revolution. Not only does it provide the basis for the ANC’s transformation agenda, but it also establishes transformation as a constitutional imperative.  For those who genuinely wish to see a truly transformed South Africa that is dealing with the legacy of apartheid there is no approach other than set out in the equality clause of our constitution.”

He added that

“What he (de Klerk) does not seem to realise is that race will continue to be an issue for as long as there are such stark disparities in the material conditions of black and white South Africans. Race will remain an issue until all echelons of our society are demographically representative.”

The ANC bases discriminatory legislation on section 9(2) of the Constitution that states 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.”

In Minister of Justice v Van Heerden, 2004, the Constitutional Court declared that “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) that prohibit unfair discrimination by the state and that determine that discrimination is unfair unless it is established that it is fair. The judgement became the fons et origo of all subsequent race-based legislation and, in effect, stripped white South Africans of their protection against racial discrimination in cases arising from affirmative action measures.

However, the socio-economic structure of South Africa has changed significantly since 1994. A study by Zizzamia et al (2019) found that, in 2017, South African society could be divided into five segments – the chronic poor who comprised 42% – none of whom were white; the transient poor 11.4% – 1,6% of whom were white; the vulnerable 19.4% (between the transient poor and the middle class) – 0.1% of whom were white; the middle class 22.4% – 20,5% of whom were white; and the elite 4.9% – 65.4% of whom were white.

The picture that emerges is of an elite group where whites are still in the majority – and a multiracial middle class that is almost 80% Black, Coloured and Indian.

This means that there are now almost one million Black, Asian and Coloured South Africans who earn more than 2,2 million whites – who now comprise only a fifth of the middle class. Since nearly all competition for employment, licences, tenders and for appointment to statutory boards takes place in the middle and elite classes, it is increasingly possible that more or equally advantaged Blacks, Coloured and Indians will enjoy automatic preference over less or equally advantaged whites.   This will clearly not promote equality as envisaged in section 9(2) of the Constitution.

It is abundantly clear that very few people in the chronic and transient poor classes have benefited from affirmative action measures.   Inequality has not improved since 1994 and is almost as great now within the black population as it is within South African society as a whole.

Critics argue that the measures that the state should have taken to promote equality in terms of section 9(2) should rather have concentrated on the provision of decent education, health care, social services and employment opportunities to the poorest segments of society.  

The existential threat posed to minorities by demographic representivity

Radical Economic Transformation on the basis of demographic representivity would affect not only the employment prospects and property rights of South Africa’s minorities – it would pose an existential threat to their future viability.

37% of South Africans in the over-80 age group are whites – compared with only 4% below the age of five.   There are more whites in the 70-74 age group than there are in the 0-4 group. At the same time there are more than eight times as many black children in 0 – 4 group as there are elderly black South Africans in the 70-74 group.

Indians currently represent 2,6% of the population but constitute only 1,7% of the population under the age of five.   Whites comprise 8.7% of the EAP (2019) but only 4% of the 0-4 population. In the strange mathematics of demographic representivity this means that the Indians’ share of land, property, jobs and wealth will be ratcheted down by 34% during the coming decades – and that of whites by 54%. This would be irrespective of their existing rights, their qualifications, their investment in time and resources and their economic and entrepreneurial contribution. The sole criterion would be the size of the racial group to which they belong.

However, these projections do not factor in the impact that accelerated emigration might have on population levels. There are a number of factors that might contribute to accelerated white emigration, including demographic representivity, an assault on white property rights; the proposed National Health Insurance scheme; and continuing economic decline.

Should such developments cause white emigration to revert to the levels experienced between 1990 and 1996 the projected white percentage of the population would decline to 5,5% in 2030; 3,96% in 2040 and 2,9% in 2050.

On 31 January, 2020, former President FW de Klerk made the following stark observations regarding the imposition of demographic representivity on South Africa’s minorities:

“In a society where everything is distributed according to racial percentages, prospects are very bleak for those who belong to diminishing minorities. Those who exceed their racial quota will be consigned to a twilight world of self-employment or emigration – thus ratcheting down their racial share of the population even more rapidly. All this is contributing to a serious and unaffordable erosion of the country’s skills and tax base.

“It is a mathematical certainty that, on this basis, demographic representivity will within a few generations lead to the reduction of our white – and probably Indian – communities to an insignificant percentage of the total population. Wittingly or unwittingly the government’s racial policies – together with rampant crime and the threat to health services posed by the NHI – are posing an existential threat to our minority communities.”

Conclusion

The South African government has, undoubtedly, adopted policies designed to dismantle equal opportunity in employment, education, and business.

 

SOURCE:The Trump Executive Order on South Africa: An analysis (II) – OPINION | Politicsweb

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