The following are edited remarks I delivered at the launch of the joint Free Market Foundation-Solidarity Research Institute report on the cost of so-called “broad-based black economic empowerment” policies at Melrose Arch, Johannesburg, on 12 June.
Thank you to everyone for making the time to be here today. I am Martin van Staden, and I am the Head of Policy at the Free Market Foundation.
I am going to take this opportunity to provide a very brief overview of race law in South Africa today, before my colleague, Dr Morné Malan, dives into the detail of the cost of the country’s biggest race law.
Please, however, do not just take it from me that South Africa legislates by race today.
Earlier this week, in his newsletter, Cyril Ramaphosa said, and I quote, “Since 1994, we have built a robust legislative framework to advance the transformation of our economy, anchored in the Broad-Based Black Economic Empowerment Act and the Employment Equity Act.”
Ramaphosa also, a few weeks ago in Parliament, confirmed quite bluntly that we will continue to see legislation employing racialised provisions until South Africa has attained utopian equality.
But Ramaphosa is indeed correct that the B-BBEE Act is the anchor of the post-1994 legislative framework of race law. Not only does the Act find application through its various regulations, sector codes, and charters, but it is also regularly cross-referenced and incorporated by reference in other Acts of Parliament, like the Public Procurement Act and the Property Practitioners Act, to take two very recent examples.
But, just to provide a general idea for you, I compiled and maintain the Index of Race Law on behalf of the South African Institute of Race Relations. The Index is intended to, and does, track the occurrences of Parliament, in its legislation, making a person’s race, skin-colour, or ethnicity legally relevant in any way, since 1910. So, it does cover the whole existence of Parliament from its creation, and thus also covers the eras of segregation, of Apartheid, and today of Transformationism.
Since 1910, Parliament has adopted a total of 324 Acts that fit the criterion of race law (that being, legal relevance attached to inborn skin-colour). Of these 324 Acts, at least 122 have been adopted since the constitutional transition in 1994. And, once again, of these 324 Acts, 145 remain operational in our law, though nine of the 145 have been deracialised.
To some of you these numbers might appear novel, but that is because the latest Index update was just this week. You can all access the Index of Race Law at RaceLaw.co.za.
Thus far, I am aware of at least three mainstream media houses that have subjected the Index to stress-tests and fact-checks. And although they might wish that race laws were rather judged on the intentions of the legislators who adopted them – instead of their nature as race laws – each of these fact-checks have found that the Index is robust and accurate as far as picking up occurrences of race-in-law.
Ladies and gentlemen, the extent of race law in South Africa is in fact a far higher number, because the Index does not yet take into account the many regulations, codes, and charters, which are as binding in law as Acts of Parliament are. In time the Index will do so, but I just want to get out of the way that only Acts of Parliament are currently considered, and that the numbers I have just mentioned are in fact the minimums.
The Broad-Based Black Economic Empowerment Act, alongside the Employment Equity Act, the Competition Act, and the Public Procurement Act, are in my view the four race laws that in practice make it either impossible or nearly impossible for anyone to do substantive business in this country without at some point being called upon to account for race.
- To declare their own race, though they might not want to.
- To compel their employees to racialise themselves, though they might not want to.
- To require suppliers, and even clients in some cases, to identify themselves by inborn melanin content, though they might not want to.
And these, ladies and gentlemen, are only four of many.
Only four, that already in commercial practice and in other realms of life, elevate a preoccupation with colour appearance over competing considerations of merit, efficiency, growth, and of course morality and ethics. They force those who might want to live and behave as committed non-racialists to sacrifice their conscientious beliefs to the total ideological regimentation of our society according to race by the political elite.
And this cost to merit, to efficiency, morality, and ethics, is already sufficient today, as it was a century ago, to lead us to insist that this government abandons its racial enterprise. But this racial enterprise also has a bare-minimum quantifiable cost to our fiscus and to growth, and that is what we are here today to consider, which Dr Malan and Mr Du Buisson will get into.
Thank you.
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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