Despite disastrous mismanagement, a halo effect exists around the ANC in much of the global community. This celebration of their own role in supporting South Africa’s transition to democracy has led to excessive indulgence of the ANC’s subsequent failings. But the new sheriff in Washington is taking a different approach, with SA’s raft of race-based laws now in President Donald Trump’s crosshairs. Martin van Staden, who edits the IRR’s Race Law Index, says this is long overdue as the ANC had given short shrift to any criticism of racist laws – identical to the National Party’s response during the Apartheid era. He spoke to BizNews editor Alec Hogg.
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A nation still defined by race? The startling reality
South Africa is once again in the global spotlight, but not for the reasons many might expect. A narrative persists that the country abolished all race-based laws with the fall of apartheid in 1994. However, as Martin van Staden, head of policy at the Free Market Foundation, explains, this is far from the full picture. South Africa still maintains and even expands laws that consider race as a legally relevant factor.
Van Staden, who also compiles the Race Law Index for the Institute for Race Relations (IRR), reveals that since 1910, a total of 317 race-related acts of Parliament have been passed in South Africa. Shockingly, 117 of those—over one-third—have been implemented since 1994. This contradicts the widely held belief that race laws disappeared with apartheid. Instead, these laws have evolved under the justification of economic redress and transformation, continuing to influence key aspects of governance, business, and public policy.
The legacy of racial engineering: More than a century of race laws
Historically, race laws have been a fixture in South African governance, dating back centuries. The Race Law Index starts in 1910, when the Union of South Africa was established. Since then, laws codifying racial distinctions have been enacted, modified, or repealed over time. Of the 317 total race laws recorded, 142 remain in effect today, with only nine having been fully deracialized.
What is most striking is the continued reliance on race as a determining factor in modern South African law. Van Staden highlights how the post-apartheid government has justified these laws under the banner of redress. However, he argues that regardless of their intentions, they remain race laws. “The road to hell is paved with good intentions,” he notes, emphasizing that laws should be judged on their consequences rather than political rhetoric.
Race laws disguised as progress? The good intentions debate
Proponents of South Africa’s race-based laws argue that they serve a corrective function, addressing past injustices and promoting greater economic equality. Policies such as Black Economic Empowerment (BEE) and employment equity requirements aim to improve opportunities for historically disadvantaged groups. However, Van Staden warns that these laws often entrench racial divisions rather than alleviate them.
“The logic behind these laws is rooted in a form of racial proportionality that doesn’t always lead to meaningful progress,” he explains. “If you are 7% of the population, you should own 7% of the land—this kind of thinking dominates much of the policymaking. But wealth redistribution through racial quotas is not an effective economic strategy.”
Furthermore, Van Staden draws parallels to apartheid-era justifications for racial laws. During apartheid, the government claimed that race-based policies were meant to “protect” different racial groups from each other or to preserve cultural heritage. Similarly, modern race laws are framed as instruments of social justice, yet they often serve to maintain the political status quo rather than address poverty at its root cause.
Is South Africa scaring away investors?
One of the most significant criticisms of race-based legislation is its effect on economic growth. The World Bank recently called for South Africa to make it easier to employ people, arguing that rigid labor and BEE policies deter investment. Van Staden echoes this concern, stating, “Who is going to invest if you have a 30% tax on anything you invest in? That’s essentially what BEE is. Investors are looking at the risks and choosing to go elsewhere.”
Additionally, he points to the corruption associated with racial quotas. When government contracts and business opportunities are awarded based on race rather than merit, politically connected elites often benefit at the expense of the broader population. “BEE has been used as a mechanism for corruption,” he states, emphasizing that many of these policies do little to uplift the truly disadvantaged.
Global scrutiny: Will international pressure force change?
With increasing frustration over the government’s handling of race laws, some South Africans have sought external intervention. Recent outreach to former U.S. President Donald Trump by South African groups advocating for non-racialism has sparked controversy. While Van Staden is not a supporter of Trump, he acknowledges that international pressure might be the only way to push the South African government toward reform. “The ANC has responded to foreign pressure above all else,” he says. “Perhaps now, with global scrutiny, there’s a chance to turn things around.”
South Africa has faced international criticism before—most notably during apartheid—when global pressure eventually contributed to systemic change. Van Staden argues that a similar approach may be necessary today, as domestic avenues for change, such as litigation and parliamentary engagement, have largely been met with resistance.
A fork in the road: Will South Africa choose true non-racialism?
The question now is whether South Africa will continue down its current path or consider policy shifts to address economic challenges without relying on race. The country remains in a highly fluid political environment. The 2024 elections raised hopes for a major transformation, but so far, the ruling African National Congress (ANC) has managed to maintain its race-based policy stance.
Van Staden believes that while political solutions may be unlikely in the immediate future, growing international scrutiny could force the government’s hand. “The mystique around the ANC internationally has been broken,” he says. “More world leaders are starting to question South Africa’s approach, and that strengthens our hand in pushing for change.”
Despite this, he remains skeptical about the ability of South Africa’s courts to bring meaningful reform. However, he points to a key development: the ANC has at least acknowledged that racial affirmative action policies should have a sunset clause. Whether they follow through on this remains to be seen.
Conclusion: The clock is ticking on race-based governance
South Africa’s race laws are a complex issue, deeply entrenched in history but still shaping modern governance. While proponents argue they are necessary for redress, critics warn that they entrench racial divisions and stifle economic growth. Van Staden’s Race Law Index provides a much-needed quantification of this phenomenon, revealing that the legal framework of apartheid-era race laws has not disappeared—it has merely evolved.
With increasing international scrutiny and growing economic pressures, South Africa may soon have to confront a difficult question: Will it continue using race as a policy tool, or will it embrace a truly non-racial future? The coming years will determine whether the country chooses to break free from race-based governance or double down on a divisive past.
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