I was surprised by the enthusiastic, ideological defence of the colour bar by John Dludlu (“Dis-Chem is on the right path with transformation”), decades after the last vestiges of racial job reservation were thought to have been eliminated. Why does Dludlu – amongst many others – have only positive things to say about immoral and objectively counterproductive policy? 

Dludlu is certainly not the only commentator who bends over backwards to be positive about ANC policy.  Of course, everyone condemns corruption and the ANC’s so-called “RET” faction. But it is rare to read criticism of the fundamental immorality (or even just impracticality) of existing policy, outside of the think tank space. 

Why is this?  

Dludlu is the CEO of the Small Business Institute (SBI), the voice of small business in a regulatory environment marked by contempt for the engines driving our economy.  

New policy proposals from the government routinely throw small business owners under the bus. Colour bar legislation like the Employment Equity Act and its newest amendment form part of this anti-enterprise trend. 

Dludlu’s calculus appears to be that if the SBI is to be an effective voice for small business, he needs to maintain political connections. If he neglects his relationships with such destroyers of the economy as Ebrahim Patel and Thulas Nxesi and their respective directors-general and department heads, SBI members might begin to think they are not getting enough bang for their membership buck.  

Similarly, CEOs in large companies especially simply cannot afford to launch broadsides against the normative pillars of ANC policy. To do so might mean the minister responsible for regulating their industry no longer returns their calls and, eventually, their licence to operate might find itself not renewed ‘in the public interest’. 

Administrative Machtstaat 

And herein lies the problem: what Lord Hewart called ‘the new despotism’, or what the Americans call ‘the administrative state’.   

These terms refer to a situation where the laws adopted by Parliament contain very little substance in themselves. They merely set general principles. Where the real meat and potatoes of governance comes in, is in ministerial regulations and official discretion. What this often means in practice is that our reading of the law does not match our experience of it. 

The implication is that the administration – not the legislature – makes the law (under the paper-thin guise of ‘regulation’) and decides how, or if, it will be applied. 

South Africa is not the only administrative state, of course. This phenomenon can be found throughout the world, especially after government-provided welfare entitlements became predominant in the early twentieth century. The vast expansion in the scope of government interference in society was perceived by many as a good reason to empower officials, closer to the ground than legislators, to shoot from the hip as far as governance was concerned. 

But South Africa is different in an important way that makes the administrative state particularly dangerous to us. 

The governing ANC does not regard itself as an ordinary political party temporarily in office to administer the South African state, based on a democratic mandate bestowed on the strength of its electoral manifesto. Instead, the ANC sees itself as a people’s movement that bravely conquered the apartheid regime in a bloody war. While the party would not phrase it as such, it is apparent that it regards South Africa as the spoils of that war. The ANC won, fair and square, and to deny or undermine this victory is to commit political blasphemy. 

Few other governing parties in the democratic world view themselves in this light. This has important practical consequences. 

While a Norwegian or U.S. CEO might publicly oppose the policies of the government of the day without some minister or official then trying to target their business, this is not possible in South Africa. To criticise fundamental policy precepts in South Africa, like racial job reservation, is to deeply offend ANC cadres. And they will exact vengeance; usually lawfully and politely, but they will have blood. 

Nowhere in the statute book will one find provisions saying that businesses may be punished when they upset the political elite. But the reality is that there is a palpable fear that criticising the said elite will attract harmful regulation. 

Only a small number of mavericks – the likes of Rob Hersov or Busi Mavuso – can successfully overcome this fear. 

This is why South Africa cannot afford to be an administrative state. We do not have a political culture mature enough for it. South Africa has a hyper-partisan civil service administering legislation that gives officials wide-ranging powers to pursue their personal and/or ideological interests. 

When two competing hospital groups apply for a licence to build a new facility, it is to be expected that the group whose leaders have cosied up to the health minister or his officials will get the licence, instead of the group that publicly expressed its deep suspicion of the ill-considered National Health Insurance plan. 

Constitutional Rechtsstaat 

If South Africa cannot be an administrative state, what is the alternative? 

The administrative state is the modern, polite incarnation of what is known in German as the Machtstaat – a state of raw power-politics. The opposite of that is the Rechtsstaat – the constitutional state. 

In the constitutional state, political power is widely diffused and severely limited. The people’s democratic representatives in Parliament take a far more active (but not wasteful) role in legislating by jealously guarding the plenary power to make law. They do not assign this power to ministers who then make any number of regulations, and certainly do not write legislation chock-full of discretionary powers for officials. Being a member of Parliament in a constitutional state is an important calling.  

But even more important, in the words of Professor Koos Malan, is the ‘office of citizenship’.   

The citizen is not a ‘subject’ of the government’s legal diktats, but in fact the most senior political office in the State. The Americans expressed it as the ‘privileges and immunities’ of citizenship. In a democracy, the citizen is supposed to be an integral part of the function of the State, not outside of it. This is one of the most important ways, in a constitutional state, in which the freedom of individuals is protected – including the freedom to express themselves freely on matters of policy. 

This is a roundabout way of saying that citizens are respected constitutional officers. The CEOs who express a view contrary to government policy are not to be ostracised or undermined. They are to be taken seriously. In this way, ultimately, civil society – not only government – is a meaningful source of political power.  

South Africa has the necessary framework to be a constitutional state, where the power of government is limited and not open to expansion on a political whim. The written Constitution adopted in 1996 is well-suited to this purpose. It is the meat that we have packed on the bones that is regrettably rotten.  

Martin van Staden is the Head of Policy at the Free Market Foundation and former Deputy Head of Policy Research at the Institute of Race Relations (IRR). Martin also serves as the Editor of the IRR’s History Project and its Race Law Project, and is an advisor to the Free Speech Union SA. He is pursuing a doctorate in law at the University of Pretoria. For more information visit www.martinvanstaden.com.