One of the attempts at a “gotcha” against the statement that there are, give or take, 145 operational race laws on the books in South Africa, involves creating the impression that those who cite it are being dishonest and just plucked a random number from thin air.
On social media, and among journalists, the question is often childishly posed as: “Name even five race laws – we will wait.”
Of course, those familiar with the South African Institute of Race Relations’ Index of Race Law would be able to name quite a few more than five (for some reason, the request is always for five) race laws. The Index contains a fully itemised database of all (known) operational and repealed racial Acts of Parliament in South Africa and is updated periodically when new information arises.
Since it is an index and not an encyclopaedia, the Index of Race Law is intended – like any index at the back of a book – to allow readers to identify sources and go on to do their own further reading.
Nonetheless, since this is a common phenomenon in the discourse around race law, and quite easy to rebut, I have selected seven race laws other than the most notable race laws that all South Africans should be familiar with. These notable race laws – about which there is and can be no disagreement about their racial nature – are, of course, the Employment Equity Act of 1998 and the Broad-Based Black Economic Empowerment Act of 2003.
Others that I have already elaborated on are the National Environmental Management: Protected Areas Act of 2003, the National Environmental Management: Waste Act of 2008, and the National Small Enterprises Act of 1996. With these, we already have five elucidated race laws.
There are, of course, hundreds more. But here follow seven notable ones in order of adoption.
Buckle up for a long one, and feel free to skip to the Acts that interest you. But do note that I venture to explain more around the first Acts and then skip explanations towards the end that would simply have been repetitions.
If you do get to the end, though, you will find yourself chuckling whenever you read or hear someone again try to claim that there are no race laws in South Africa.
National Water Act of 1998
Inclusion on the Index of Race Law is triggered only by operative racialism (not the mere “mention of race” as some have claimed).
Section 2 of the National Water Act concerns the “Purpose of Act,” meaning whenever an official or a court gives effect to the provisions of the law, the items listed therein must be factored into account.
The Act is said to ensure that South Africa’s water resources are protected, utilised, developed, conserved, managed, and controlled in ways that take into account, among other things, the establishment of “suitable institutions, and to ensure that they have appropriate community, racial, and gender representation.”
Section 27 of the Act concerns “Considerations for issue of general authorisations and licences.”
In the issuing of an authorisation or licence to use water in essentially anything other than domestic or recreational contexts, the government must (per section 27(1)(b)) consider “the need to redress the results of past racial and gender discrimination.”
The same is essentially repeated in section 45(2)(c), which concerns how government prepares its (water licence) allocation schedules and what it must take into account when so doing.
Section 61 concerns “Financial assistance by Minister” – wherein they obviously mean the taxpayer. These “grants, loans, or subsidies” can be for any person related to some or other aspect of the Act, like making licence applications.
Before the Minister may dish out taxpayer funds, they must consider, per section 61(3)(c), “the need for redressing the results of past racial and gender discrimination.”
Section 79 concerns “General powers and duties of catchment management agencies.” These agencies are regional or local associations that receive a delegated power from government to engage in “water resource management.”
Per section 79(4)(a), a catchment agency must in the performance of its duties “be mindful of the constitutional imperative to redress the results of past racial and gender discrimination and to achieve equitable access for all to the water resources under its control.”
All these provisions might appear innocuous, providing simply that past wrongs must be factored into account in the exercise of state powers.
The problem, of course, is that “redressing the results of past racial discrimination” has in practice been construed to mean that government consciously takes into account the race of recipients – to their benefit or detriment – of whatever is contemplated (a licence, a subsidy, etc.). As such, these provisions all qualify as making race legally relevant and thus for inclusion in the Index.
Besides these provisions, sections 81(10)(c) and (e), which concern the appointment of the governing board of catchment management agencies, compel the Minister, when appointing additional members, to do so in pursuance of the achievement of “sufficient demographic representation” and the achievement of “representation of disadvantaged persons or communities which have been prejudiced by past racial and gender discrimination in relation to access to water.”
Again, whatever one might think of these provisions, they evidently, and on their face, render race a legally relevant consideration.
Competition Act of 1998
Section 2 of the Competition Act concerns “Purpose of Act” – again, things that must be borne in mind when any of its provisions are read or applied – and per section 2(f), one of these is “to promote a greater spread of ownership, in particular to increase the ownership stakes of historically disadvantaged persons.”
Section 3(2) of the Act explains that for “all the purposes of this Act, a person is a historically disadvantaged person if that person” is part of “a category of individuals who” before the adoption of the 1993 interim Constitution “were disadvantaged by unfair discrimination on the basis of race” or is an association or juristic person that is largely membered or controlled and owned by such persons.
This is an unequivocal definition of race, for this category of individuals right before the interim Constitution was adopted was a racial category that includes everyone who is not white.
Section 8 of the Act prohibits “abuse of dominance” by market actors.
Section 8(4) prohibits such “dominant firms” in specific sectors the Minister identifies for “benchmarking” from “directly or indirectly” requiring or imposing on a small or medium business supplier or a supplier “controlled or owned by historically disadvantaged persons” unfair prices or unfair “other trading conditions.” Businesses are explicitly prohibited from sidestepping this provision by refusing to do business with “a small and medium business or a firm controlled or owned by historically disadvantaged persons.”
Section 9 of the Act concerns the prohibition of “price discrimination by dominant firm as seller.”
Section 9(1)(a)(ii) provides that, “An action by a dominant firm, as the seller of goods or services, is prohibited price discrimination, if it is likely to have the effect of impeding the ability of small and medium businesses or firms controlled or owned by historically disadvantaged persons, to participate effectively.”
As with the above, businesses may not circumvent this provision by refusing to sell “goods or services to a purchaser” that is protected by this provision.
Section 9(3)(b) explains that if there is a “prima facie case” of a contravention of these provisions – in other words, the Competition Commission cannot yet prove but has slightly more than a hunch that something is amiss – the company in question must “show that its actions did not impede the ability of small and medium businesses and firms controlled or owned by historically disadvantaged persons to participate effectively.”
Chapter 2 of the Competition Act concerns “Prohibited Practices” – practices the government (usually errantly) believes are anti-competitive and which businesses may not engage in.
Under section 10 of the Act, a business may apply to be exempted from this chapter. In other words, the firm may engage in what are called prohibited practices (things that other firms, in other words, may not do).
Per section 10(3)(b), a firm may only be exempted by the Commission if it, among other things, contributes to the “promotion of the effective entry into, participation in, or expansion within a market by small and medium businesses, or firms controlled or owned by historically disadvantaged persons” or to “the economic development, growth, transformation, or stability of any industry designed by the Minister”.
Like “historically disadvantaged persons” (or any of its derivatives), “transformation” in South African law bears undeniable racial meaning unless the context explicitly dictates otherwise.
Section 12A(3) of the Act provides that when the Competition Commission is deciding whether a merger of two or more firms is in the “public interest,” it must take into account (per section 12A(3)(c) and (e)) “the effect that the merger will have on the ability of small and medium businesses, or firms controlled or owned by historically disadvantaged persons, to effectively enter into, participate in, or expand within the market,” and “the promotion of a greater spread of ownership, in particular to increase the levels of ownership by historically disadvantaged persons and workers in firms in the market.”
In other words, if a 100% black-owned company wants to merge with a 50% white-owned company, and the resulting company will be, say, 75% black-owned, the Competition Commission must at least take this factor into account as counting against the merger. If sufficient other political considerations also count against the merger, this factor could tip the scales in favour of the Commission forbidding the merger.
Chapter 4A of the Act concerns “Market Inquiries,” those infamous Competition Commission witch-hunts that punish success and extort companies into paying massive “settlements.”
Section 43A of the Act is about the “Interpretation and Application of this Chapter,” and explains that in section 43A(3)(ii), one of the things the Commission must investigate is “the instruments in place to foster transformation in the market.”
Section 43C concerns the “Matters to be decided at market inquiry.” When making its decision, the Commission is, per section 43C(2), required to “have regard to the impact of the adverse effect on competition on small and medium businesses, or firms controlled or owned by historically disadvantaged persons.”
Understand this clearly: there is an “or,” so it does not mean small businesses owned by historically disadvantaged persons must be looked after, it means that even big businesses owned by people fitting the category of “historically disadvantaged” must be protected by the Commission – a privilege it does not afford other taxpaying corporates.
Section 59 of the Act concerns “Administrative penalties” imposed by the Competition Tribunal for violations of the Act.
Section 59(3) provides that when the Tribunal is determining the penalty, it must consider, among other things, “the market circumstances in which the contravention took place, including whether, and to what extent, the contravention had an impact upon small and medium businesses and firms owned or controlled by historically disadvantaged persons.”
This is to say that if a company falls foul of competition law by engaging in anticompetitive behaviour, say, against a white tannie selling koeksisters in Bloemfontein, the tannie’s white skin is no factor. But if that same company engaged in the same behaviour against a black gogo selling mealiepap in Johannesburg, the gogo’s skin-colour “must” be a factor.
Gas Act of 2001
Section 2 of the Gas Act concerns “Objects of Act,” and includes, per section 2(d), the promotion of “companies in the gas industry that are owned or controlled by historically disadvantaged South Africans by means of licence conditions so as to enable them to become more competitive,” and section 2(g) to “promote employment equity in the gas industry.”
“Employment equity” in South Africa is not a synonym for “employment fairness” as the word “equity” might imply. Employment equity means equitable (racial, gender, etc.) distribution of employment positions – i.e., so-called “affirmative action.”
Section 21 concerns “Conditions of licence” for licences to construct gas-related infrastructure, operate gas-related facilities, or trade in gas.
Section 21(1)(b) provides that when imposing licence conditions, the Gas Regulator may require licensees to “provide information [to it] of the commercial arrangements regarding the participation of historically disadvantaged South Africans in the licensees’ activities”.
Section 34 regards ministerial “Regulations and rules.”
Section 34(1)(j) empowers the Minister to make regulations regarding “mechanisms to promote historically disadvantaged South Africans.”
Liquor Act of 2003
Section 13 of the Liquor Act concerns “Conditions of registration” of liquor manufacturers and distributors.
Section 13(1)(a) provides that, when considering an application for registration, the Minister must consider the “commitments made by the applicant in terms of black economic empowerment.”
Section 19 of the Act concerns “Conditions of licence” for these same applicants.
Section 19(1)(b) provides that the Minister “may review, and propose new conditions on, a registration if the registrant has not met its commitments in terms of black economic empowerment, and cannot provide adequate reasons for failing to do so.”
Legal Practice Act of 2014
The Legal Practice Act regulates the totality of the advocates’ and attorneys’ profession.
Section 3(a) of the Act concerns the Act’s purpose, and includes providing “a legislative framework for the transformation and restructuring of the legal profession that embraces the values underpinning the Constitution and ensures that the rule of law is upheld.”
Section 6(1)(b)(v) provides that the Legal Practice Council must “develop programmes in order to empower historically disadvantaged legal practitioners, as well as candidate legal practitioners.” Section 6(5)(h)(iv) provides that the Council must report on progress in this regard to the Minister, with respect to legal education and training.
Section 7(2)(a) provides that when the Council is constituted, “the racial and gender composition of South Africa” must “as far as is practicable” be factored in.
Section 19(5) of the Act provides that there is a “need for the staff of the Council to reflect the racial and gender composition of South Africa” and this must, “as far as is practicable, be considered when the executive officer and other employees of the Council are appointed.”
Section 20(3)(a) of the Act provides that the executive committee of the Council must “reflect the racial and gender composition of South Africa.”
Section 37(5)(a) provides that when legal disciplinary committees are established, “the racial and gender composition of South Africa” must “as far as is practicable” be factored in.
Section 62(2)(a) provides that there is a “need for the [Legal Practitioners’ Fidelity Fund] Board to reflect the racial and gender composition of South Africa.”
Section 62(5)(a) provides that there is a “need for the staff of the [above] Board to reflect the racial and gender composition of South Africa.”
Section 94(1) provides that the Minister may “make regulations relating to the establishment of a mechanism to monitor progress on the implementation of the programmes relating to the empowerment of historically disadvantaged legal practitioners as well as historically disadvantaged candidate legal practitioners.”
Section 96(2)(a) provides that there is a “need for the National Forum [on the Legal Profession] to reflect the racial and gender composition of South Africa”.
Property Practitioners Act of 2019
Section 3 of the Act concerns the objectives of the Act.
Section 3(j) provides that the Act aims “to provide for the transformation of the property market and the establishment of the Property Sector Transformation Fund.”
Section 6(h) provides that one of the functions of the Property Practitioners Regulatory Authority is the implementation of “measures to ensure that the property sector is transformed as set out in Chapter 4.”
Everything in Chapter 4, titled “Transformation of Property Sector,” is racial.
Section 20(1) provides for a “Property Sector Transformation Charter Code” which “applies to all property practitioners.”
Section 20(2) provides that when any organ of state procures “property-related goods and services,” only those “property practitioners who comply with the broad-based black economic empowerment and employment equity legislation and policies” may be utilised.
The days of small (non-black) family-owned estate agencies having any sort of relationship with the state are over.
Section 20(3) of the Act provides that the Authority must, among other things, “implement appropriate measures and assess the state of transformation within the property sector,” grant “incentives” that help along “transformation imperatives,” and “introduce measures to be implemented, which may include incubation and capacity building programmes to redress the imbalances of the past.”
Section 21(2) provides that the Transformation Fund, under ministerial prescriptions, must “facilitat[e] the accessibility of finance for property ownership, property development, and investment in order to enable meaningful participation of historically disadvantaged individuals including women, youth, and people with disabilities.”
Note that the “including” does not, for some reason, negate the substantive provision that comes before: historically disadvantaged individuals, with its legally established racial meaning.
Section 21(3) provides that the Transformation Fund may be used “to promote Black owned firms and principals” (what it calls Principalisation), “to promote and encourage participation of the historically disadvantaged due to non-compliance” (what it calls Regularisation), and “to promote and enhance participation of the historically disadvantaged in the property sector (what it calls Work Readiness).
Section 21(4) provides that the Authority must “develop special dispensation [sic] for the training and development of the historically disadvantaged”.
Section 22, a long provision, establishes a “Property Sector Research Centre” that must, among other things, all related to “transformation”, identify “barriers to entry and meaningful participation in the property sector by historically disadvantaged individuals”.
Section 39(1)(a)(v), outside Chapter 4, provides that the Board of the Property Practitioners Fidelity Fund “may authorise grants from the Fund with regard to transformation of the property sector.”
Upstream Petroleum Resources Development Act of 2024
The final Act I’ll have a look at today is the Upstream Petroleum Resources Development Act, one of South Africa’s youngest and most brazenly racial Acts of Parliament.
Section 2(d) of the Act states as among this law’s objectives are “to substantially and meaningfully expand opportunities for black persons, to enter into and actively participate in the upstream petroleum sector and to benefit from the exploitation of the nation’s petroleum resources.”
Section 31 of the Act concerns “Participation of black persons in petroleum rights,” and is entirely racial across all 10 of its subsections and paragraphs. Here are noteworthy provisions.
Sub (1) provides that, “Every petroleum right must have a minimum of 10 per cent undivided participating interest by black persons.”
Sub (2) provides that this undivided interest may not be diluted to less than five percent, “subject to a right of first refusal by the State on terms agreed to with the relevant black person”.
Subs (4) and (5) provide that those who cannot achieve the 10 percent undivided black participation interest must prove to the government why it cannot be achieved, details of the “potential black persons that were engaged,” and any other information that the Petroleum Agency might want.
Section 32 concerns “Reservation of block or blocks for black persons,” and, like section 31, is entirely racial across its six subsections and paragraphs.
Sub (1) empowers the Minister to “reserve a block or blocks for black persons and invite applications for petroleum rights from black persons”.
Sub (4) provides that the Minister may request any other organ of state to assist potential application in complying with the racial engineering contemplated.
Section 33 is a similar story, and concerns “Exit of black persons from petroleum right.”
This could have been an example of a good transformation provision, as it came close to satisfying the principle of “once empowered, always empowered.”
It provides that when “black persons exit from a specific petroleum right, the empowerment credentials of that specific petroleum right must be recognised…” and then it goes off the rails, “… for the duration of the petroleum right: Provided that…”
The provision then goes on to list four factors that render any good sense present in the initial idea nugatory. One of these is illustrative: Special “exit mechanisms” for the exit of black people in particular must be present and then submitted to the Petroleum Agency once those black people exit.
The Act goes on.
Section 35(6) provides that the “State Petroleum Company is exempt from a black persons’ participation requirement as contemplated in section 31.”
How nice!
Section 37(5) provides that when the Minister considers applications for petroleum rights “received on the same day, he or she must give preference to applications from black persons.”
The provisions that follow all related to various “phases” of applications in the complex world of statism’s zeal to regulate natural resources like petroleum. Expect at least some confusion.
Section 46(3)(b)(iii) provides that applications for petroleum exploration authorisations “must be accompanied by a detailed report on compliance with black persons empowerment and State participation.”
Section 47(g) provides that the “Petroleum Agency must grant the approval for the holder of a petroleum right to progress to another term if the holder has complied with the requirements of State participation and empowerment of black persons.”
Section 50(e) provides that the “holder of a petroleum right must comply with the requirements for State participation and empowerment of black persons.”
Section 58(3)(c) provides that an “application for approval to progress to the production phase [must] be accompanied by a report on compliance with black persons’ and State participation requirements”.
Section 58(3)(d)(i) provides that the same application referred to immediately above must also be accompanied by “a prescribed local content plan, which includes the procurement progression plan for fulfilling the requirements with respect to the provision of goods and services by black persons.”
Section 62(3)(b)(iv), similar to the above, provides that an “application to progress to the second or further term of the production phase must be accompanied by a detailed report on compliance with the requirements of State participation and black persons’ empowerment”.
Section 63(1)(c)(iv), again almost identically, provides that the “Petroleum Agency must grant approval for the holder of a petroleum right to progress to the next term if the holder has complied with the requirements of State participation and black persons’ empowerment”.
Finally, section 107(1)(a) of the Act provides that the Minister may “make regulations regarding the local content plan which must address skills development, prioritisation of recruitment of local persons and national participation through procurement of goods and services by black persons.”
[Image: Timon Studler on Unsplash]
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
If you like what you have just read, support the Daily Friend