What South Africa's constitution actually says about race and redress: Hermann Pretorius
Key topics:
Section 1 of SA Constitution is supreme, above Bill of Rights
Non-racialism and equality are co-equal, binding constitutional values
Race-based laws conflict with section 1(b) and are unconstitutional
Sign up for your early morning brew of the BizNews Insider to keep you up to speed with the content that matters. The newsletter will land in your inbox at 5:30am weekdays. Register here.
Support South Africa’s bastion of independent journalism, offering balanced insights on investments, business, and the political economy, by joining BizNews Premium. Register here.
If you prefer WhatsApp for updates, sign up to the BizNews channel here.
Rarely does public debate centre on the Founding Provisions of section 1 of the Constitution. This section has almost drifted into an ethereal category, treated as something poetical and introductory, alongside the Preamble, rather than binding law.
When policy debates enter the realm of values, it is always the Bill of Rights that becomes the first point of departure in normative and legal consideration. And as laudable and necessary as this often is, it misses the fact that South Africa’s fundamental statement of the social contract rests primarily on law that outranks even the Bill of Rights.
The reality is that section 1 of the Constitution, unlike the Preamble, legislates. It can be amended only under the steepest threshold in the Constitution: 75% in the National Assembly and support from six provinces. Section 74(1), which governs this, is itself protected by the same extraordinary majority. This design makes clear that section 1 is not ornamental but superior law, procedurally and substantively. The reason that section 1 is amendable where the Preamble is not, is precisely because it is intended to be constitutional law with deliberate legal effect.
Read more:
This superiority is not only procedural, but substantive. Section 1 does not merely open the Constitution; it defines the kind of republic South Africa is permitted to be and scopes out the boundaries and power of the constitutional state permitted to preside over it. Section 1 sets the basic conditions for every other provision in the text, the apex authoritative scope of law applicable throughout the rest of the Constitution and all law beyond.
Every single iota of law
Section 1, therefore, ought to be applied to every single iota of law and policy as a full and binding form of superior law. The fact that it doesn’t always achieve this shouldn’t be cause for cynical dismissal of the Constitution. No such law anywhere in the world is self-enforcing. But the value of constitutional law is not in how the state seeks to apply it, as is the case with other lower forms of law, but what the citizens of any country choose to do with it as both sword and shield.
Section 1 of the Constitution sets the conditions within which every other statutory provision must operate. It binds the entire constitutional architecture, including the Bill of Rights, and it sets the parameters of acceptable policy. And when one actually reads section 1, its implications for contemporary debates on race and redress become unavoidable.
South Africa’s constitutional settlement is founded on “the achievement of equality” and on “non-racialism and non-sexism”. These values are not free-floating aspirations, but part of a single foundational and binding legal compact. Section 1(a)’s pursuit of equality is immediately framed and defined by section 1(b)’s commitment to non-racialism – and vice versa.
These are perfectly co-equal values enshrined with supreme legal weight. The Constitution quite deliberately does not allow a route to equality that contradicts non-racialism. Equality must, if the Constitution is to be adhered to, be achieved non-racially. Section 1 simply does not allow a different reading.
Recent arguments
This point has become central in recent arguments around race-based law and policy, especially following the IRR’s request that G20 delegations disclose their racial demographics and Solidariteit’s provocative billboards describing South Africa as “the most race-regulated country in the world”. Government’s apparently unlawful removal of these materials triggered heated debate, including on the IRR’s Race Laws Index, which records 145 laws containing operative racial provisions.
Much debate and some distortion surround the Index. It is not a catalogue of “anti-white” laws but a forensic inventory of statutes that use race as a criterion with legal consequence. As explained in the methodology section of the Index’s webpage, to guard against absurd outcomes in tagging and listing any law, mere textual references do not qualify – legal relevance and statutory consequences must arise in addition to racial intent or language. The Index provides the first empirical map of race-dependent legislation in a country whose founding provisions explicitly reject racial statecraft.
A common response to criticism of race-based law is well expressed by Jonathan Berger, an advocate of the Johannesburg Bar, who argues that substantive equality under section 9(2) requires precisely such racial measures and that opposition to race laws boils down to being “against the concept of substantive equality, as entrenched in section 9(2) of the Constitution, and as recognised as a foundational value in section 1(a).” His view is a useful proxy for the broader argument that section 9(2) authorises the state to pass race-based measures and that these are consistent with, or even demanded by, the Constitution.
Section 9(2) reads as follows:
“Equality includes the full and equal enjoyment of all rights and freedoms. 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.”
Constitutional constraints
Proponents of race-based law jump directly to the second sentence as if it empowers the state to re-entrench race in law. But this reading sidelines two constitutional constraints: the first sentence of section 9(2), and, far more importantly, the superior authority of section 1(b) over 9(2). Race-based interpretations of section 9(2) quietly assume that it overrides the founding non-racial compact. Textually and structurally, it simply cannot.
When I pointed out this conflict to him, Berger retorted that my view “stripped section 9(2) of all its meaning”. But it is section 1, not any extraneous argument, that prohibits the race-based weaponisation of section 9(2). Section 1 is law of such superiority that it is not subject to the ordinary limitations that apply to rights in the Bill of Rights. Section 36, the limitations clause, applies only to “the rights in the Bill of Rights”, not section 1.
Neither government nor Parliament nor any court can therefore rightfully, in obedience to the Constitution, limit non-racialism in favour of race-based measures. The only constitutional mechanism for altering non-racialism or for exempting certain aspects of South African law or policy from it, is the amendment procedure in section 74(1).
The dominant interpretive error behind the argument that the Constitution either demands or allows racial discrimination is treating section 9 as the starting point of the constitutional conversation on equality and redress. It is evidently not. Section 1 is. Section 9 is downstream of the foundational values that section 1 entrenches. The Bill of Rights must be interpreted to “promote the values that underlie an open and democratic society”, and section 1 explicitly sets out those values, with equality and non-racialism established co-equally without a shred of ambiguity.
Particularly clear
This is made particularly clear by the non-sequential listing of values in section 1 – each value statement of section 1 stands in full autonomy. The section entertains no notion or even clue of a notion that non-racialism isn’t as constitutionally binding as human dignity, the achievement of equality and the advancement of human rights and freedoms; non-sexism; supremacy of the constitution and the rule of law; and universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.
If one assumes, as Berger and those of like mind does, that redress must be race-based, a tension appears between section 1(a) and 1(b) with 9(2) added to the confusion. But this very assumption that redress to achieve equality must be race-based is the problem, not the Constitution.
A coherent reading integrates section 1(a), 1(b), and 9(2) to find a clear and credible meaning: the injustices of apartheid must be addressed, but the state racism that defined apartheid must not be resurrected. The Constitution therefore obliges non-racial redress, the very approach embodied by the IRR’s Freedom From Poverty Bill, which uses socio-economic disadvantage rather than race as its point of departure for substantive support for those most in need.
Not an override
The text of the most superior article of law in our country leads to a conclusion many resist but the Constitution demands: any measure that relies on race as a legal sorting mechanism is presumptively inconsistent with section 1(b), and accordingly constitutionally beyond redemption by any organ of state, Parliament or court given section 1’s immunity from parliamentary or judicial limitation given its superior entrenchment in terms of section 74(1).
Section 9(2) is at most a framing permission to adopt remedial measures for the disadvantaged. It is not an override, dilution, or qualification of non-racialism. Measures taken under section 9(2) must be compatible with section 1(b) or must simply fail the test of constitutionality.
Race-based law is often defended with the claim that apartheid was a racial system and thus that justice requires a racial system in reverse. The Constitution rejects this logic explicitly. Section 1(b) is the repudiation of race as a governing principle as such. It is the guarantee that post-apartheid South Africa would not inherit the tools of its predecessor.
Read more:
None of this means the Constitution opposes redress. In fact, it mandates it. But it mandates redress that targets disadvantage, deprivation, exclusion, and need – in effect, through economic growth as the basis for building socio-economic independence and dignity and the revenue base required for a compassionate state. What the Constitution clearly prohibits is the application of racial tags to achieve any policy end – tags made defunct in any case by the 1991 repeal of the Population Registration Act. Since then, the state has been statutorily incapacitated to exercise or entertain racial classification and race-based laws.
The shamelessness with which the state has nonetheless persisted in subjecting South Africans to race laws is one of the greatest travesties of the post-1994 constitutional settlement – one for which there will hopefully one day be a reckoning. But that will be up to the people.
The state may and should design measures to advance those who continue to suffer the consequences of history, both during apartheid and after for history did not end in 1994, but the state must do so in a manner consistent with the foundational non-racial character of the Republic. Genuine redress is entirely constitutional. Racialism is not.
*Hermann Pretorius studied law and opera before entering politics and, latterly, joining the IRR as an analyst. He is presently the IRR’s Head of Strategic Communications. He describes himself as a Protestant, landless, Anglophilic, Afrikaans classical liberal.
This article was first published by Daily Friend and is republished with permission