In a debate in this publication between Professor Pierre de Vos and Dr Anthea Jeffery on the proposed amendments to the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda), it becomes patently clear that Jeffery and her ilk at the Institute of Race Relations (IRR) do not understand the historical roots of the Constitution, and how it should be implemented. 

Jeffery (no relation to Deputy Justice Minister John Jeffery) is attached to the IRR, which styles itself as an advocacy organisation that fights for your right to make decisions about your life, family, and business — free from unnecessary government, political, and bureaucratic interference. It has been fighting this libertarian fight for over 90 years. Jeffery and the IRR have a prolific record of contributing in various forms to national policy debates. Their ahistorical views cannot be left unchallenged. 

According to the IRR and Jeffery in particular, the “simplistic tenets of critical race theory” would have us believe that all whites are supposedly beneficiaries of the pervasive legacy of apartheid. Although not expressly stated, she insinuates that notions such as white privilege are unfounded.

In response to De Vos, she concedes that there are structural or systemic barriers to upward mobility in South Africa, especially for 11.4 million people who are unemployed. She effectively chooses the colour-blind route in her argument. But in a country underpinned by centuries of racial oppression, race cannot be disentangled from economic development.

Jeffery believes that the structural and systemic barriers in our society are not necessarily stubborn legacies of our past, but are direct consequences of 27 years of democracy. In the past 27 years, the African National Congress and its alliance partner the South African Communist Party have been “determined to pursue the National Democratic Revolution”. Jeffery develops this view with some “Fight Back” and swart gevaar finesse, when she says “the bill that De Vos welcomes and endorses is yet another vital NDR intervention aimed at weakening the private sector and bringing the country closer to a socialised economy”.

However, the Pepuda Amendment Bill does three important things:

First, it implements the equality jurisprudence of the Constitutional Court by updating statutory language to reflect, affirm and promote the concept of substantive equality. Why would anyone be offended by this move?

Second, it redefines discrimination and clarifies that intention is not a requirement to establish discrimination.

Third, it places an obligation not only on the state and public bodies, but also on private bodies to promote equality and prohibit unfair discrimination. The state will have to commit its budget towards these ideals. The private sector will have to uphold various sectoral codes which promote equality and seek to eliminate unfair discrimination. No one serious about justice and equality should oppose this project.

Yet, according to Jeffery, these three objectives are linked to the NDR and will have the effect of crippling the capitalist economy in South Africa.

Given that brute capitalism in South Africa generated racialised economic injustices, it is puzzling that Jeffery would want to maintain an economic status quo rooted in racist market fundamentalism that reduces black economic agency to cheap and exploited labour. Contrary to Jeffery’s misunderstanding of the NDR, it is the NDR that recognises the problem with capitalism and develops a vision for socio-economic justice. The following portion of the NDR illustrates this emphatically:

“The struggle for national democracy is also an expression of the class contradiction between the black and democratic forces on the one hand, and the monopoly capitalists on the other. The stranglehold of a small number of white monopoly capitalists over the great bulk of our country’s wealth and resources is based on colonial dispossession and promotes racial oppression.

“This concentration of wealth and power perpetuates the super-exploitation of millions of black workers. It perpetuates the separate plight of millions of the landless rural poor. And it blocks the advance of black business and other sectors of the oppressed.” This reality, therefore, forms the basis of the anti-monopoly content of the national democratic programme.

The NDR is a direct response to an unjust society facilitated by capitalism and colonisation of a special type. Although we have held six national elections in the constitutional era, the edifice of apartheid is still deeply entrenched. Our Constitution is an expression of the NDR — it is not inimical to it.

Many reports detail the sordid inequality that is pronounced across the board in the private sector both in terms of race and gender. For instance, the PWC’s Executive directors report 2020 details the following across the Johannesburg Stock Exchange: female executive directors are paid on average 74.5% of what their male counterparts earn.

Statistics South Africa also found that female workers earn about 30% less, on average, than male workers. The report reveals that males are more likely to be employed and have relatively better-paying jobs compared to females.

The earnings distributions starkly depict the heavily racialised inequality in the South African labour market. In addition to having the worst employment outcomes, black Africans also earn the lowest wages when they are employed. Whites, by contrast, earn substantially higher wages than all the other population groups. To put things into perspective, the mean real earnings between 2011 and 2015 among employed black Africans was R6,899 (real earnings) per month. For coloureds and Indians/Asians, the corresponding figures are R9,339 and R14,235 per month, respectively. Among whites, it was R24,646 per month, or more than three times as high as it was among black Africans.

The South African labour market is heavily racialised and gendered.

The Pepuda Amendment Bill, though not a panacea, can go a long way to ensuring that these types of injustices and unfair discrimination do not continue into perpetuity.

In spite of the aspirations of the Constitution, we cannot wish away the past or pretend that we are rebuilding South Africa on a new foundation.

As former Constitutional Court Justice, Kate O’Regan found in the matter of President of the Republic of South Africa v Hugo [1997] ZACC 4; 1997 (4) SALR 1 (CC), “although the long-term goal of our constitutional order is equal treatment, insisting upon equal treatment in circumstances of established inequality may well result in the entrenchment of that inequality”.

The preamble of the Constitution enjoins us all to recognise the injustices of the past. We cannot recognise these injustices rhetorically only. We must prioritise redress practically. Dr Mamphela Ramphele writes, in her contribution in the book Beyond Racism, “One cannot redress inequity on a sustainable basis without actively promoting equity at every step along the way. It is in this context that issues of race, class and gender have to be dealt with in an integrated way to minimise the emergence of, as well as the enhancement of, islands of privilege.”

The amendment bill facilitates a mechanism that will ensure that government, the private sector and civil society organisations will enable South Africans to evaluate progress on the measures to address the structural imbalances in society.

Unfair discrimination and structural inequalities have no place in a constitutional democracy. It cannot be left purely to the state to dismantle structural inequality — business and the private sector too must do their bit. The pending legislative changes that Jeffery complains about will help us get to where we need to get. Of course, Jeffery and her IRR colleagues might be more committed to holding on to patterns of racialised privileges because equality might require reckoning with the unfair advantages they have inherited. The rest of us should insist on eliminating racism from the economy. That is what the NDR envisions. That is what the Constitution demands. Do not fall for the misdirection of right-wing think tanks. DM