Why the Western Cape should be Exempted from Race-Based Legislation

PRESS ARTICLE: Racial discrimination is expressly prohibited by the constitution. Race-based laws are only legally permissible because of a caveat which doesn't apply in the Western Cape.

Why the Western Cape Must be Exempted from Race-Based Legislation

Non-racialism is a founding provision of the South African constitution. Thereafter, the bill of rights expressly forbids discrimination on the grounds of race. Any such discrimination is deemed to be unfair by default unless it can be established that it is fair. The onus of proof is very clear.

What the SA Constitution says

Chapter 1 of the constitution (the founding provisions) reads:

“The Republic of South Africa is one, sovereign, democratic state founded on the following values:

(b) Non-racialism and non-sexism.”

Chapter 2 (the bill of rights), in section 9, elaborates on what non-racialism means in practice. It reads:

(3)  The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

(4)  No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

(5)  Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

Regardless of these clear directives, discrimination on the basis of a person’s race permeates almost every aspect of our daily lives. This includes who we can work for and who we can employ, admission requirements for places of education, the composition of our sports teams, who can and can’t be our business partners, who our businesses can buy from and sell to, and even who qualifies for disaster relief.

All of these activities are, by default, unconstitutional. The only possible constitutional basis for them to be allowable is if they are deemed to be ‘fair’.

Fairness in the context of the Western Cape

‘Fairness’ is what is known as an ‘essentially contested concept’. The concept of fairness is widely understood, but its application is inherently subjective and impossible to empirically quantify. There will always be debate.

Any determination around fairness when it comes to allowing racial discrimination is further complicated in the Western Cape by the stark difference in both the province’s racial demographics and its ideological beliefs, when compared to the rest of South Africa.

What may be deemed fair in parts of South Africa, may be deemed grossly unfair in the Western Cape.

It is hard not to be reminded of the appalling comments by then Director General of Labour, Mzwanele Manyi who proposed that, as opposed to recognising the injustice of how the Employment Equity Act would affect coloured people, they instead needed to spread themselves out over South Africa as they were ‘over-concentrated’ in the Western Cape.

Precisely because the ‘coloured’ people make up the largest racial group in the Western Cape, and because race-based policy is nationally driven, they have suffered by far the most as a consequence.

The critical question is then, can it ever be fair for a national ethnic majority, to enact legislation of which it is itself the primary beneficiary, and then force it onto a province where the majority of the population are ethnic minorities, and where the majority in the province oppose race-based legislation?

Any decision around fairness must by its very definition include territorial context.

Race-based policy hasn't worked

On this basis, the Western Cape must be able to make decisions for itself, including opting out of the ‘constitutional exception’ which the national government has enacted, and reverting to the original text and non-racial spirit of the South African constitution.

At this point in time, a clear majority of Western Cape voters support the Democratic Alliance (DA) who have embraced non-racialism, preferring other more practical methods to address the historical legacy of past racial injustices.

Outcome wise, BEE and EE have been totally counter-productive. Both inequality and unemployment have increased since their adoption. They simply don’t work, but there are worse dangers still than these.

Racial divisiveness is dangerous

Just as the racial injustices of apartheid were a catalyst for violence, division, and social unrest, race-based policy in the Western Cape is sowing the seeds of a repeat performance.

In the recent elections, their first, the Cape Coloured Congress (CCC) which grew out of the ‘Gatvol Capetonian’ movement achieved 2% of the provincial vote. They have previously called for the mass removal of provincial immigrants from the Western Cape, and for race-based policy to favour ‘coloured’ as opposed to black people. They have also strongly suggested that violence may become a necessity.

Even just the suggestion of forced removals along racial lines (officially the suggestion is based on date of initial residency, but the intent is clear) is unspeakable, and must be condemned in the strongest possible terms. However, where the CCC do have a valid point, is that if you are going to use race-based policy to address historic injustices, then there is a strong argument that in the Western Cape it is the ‘coloured’ people who should be the primary beneficiary of such a policy.

Let the Western Cape be an example

The answer of course is to break the cycle of government legislated racial discrimination altogether, and to build a fairer more prosperous society using genuine non-racialism as the foundation it was always meant to be.

Given the opportunity, this is exactly what the Western Cape will choose. It must be allowed to be the best version of itself.

It must be allowed an exemption from race-based legislation.

When it gets one, and inequality and unemployment are both significantly reduced as a consequence, then perhaps the rest of South Africa will come to its senses too.