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1. The Rationale for Racial Laws

South Africa has arguably the most comprehensive and challenging affirmative action policies of any country in the world. The relevant rules cover not only affirmative action in employment and procurement but also land reform and various other components of black economic empowerment (BEE). Such policies have steadily expanded in the 20 years since April 1994, when the country’s first all-race general election brought the African National Congress (ANC) to power as part of a government of national unity committed to providing redress for decades of statutory racial discrimination.

Racial discrimination under the National Party government was profoundly damaging to black South Africans. It pervaded every aspect of their lives, confining them to overcrowded rural ‘homelands’ and segregated urban ‘townships’ where housing was cramped and electricity and modern sanitation were rare luxuries. It condemned them to schools where teachers were under-qualified and classes overcrowded, and where textbooks, stationery, and other facilities were limited and sometimes non-existent. It precluded them from buying houses or land in most parts of the country. It prevented them from running businesses in city centres designated as ‘white’ areas, while restricting the business activities open to them in townships. For many years, it also barred them from the skilled jobs that were ‘reserved’ for whites.

Statutory racial discrimination thus made upward social mobility infinitely more difficult for black South Africans, since the normal foundations for this – adequate housing, good schooling, skilled employment, property ownership, and business opportunities – were barred to them in whole or in part. Black people were thus dealt major economic blows, while suffering the daily humiliations flowing both from these restrictions and from the pervasive sense of being ‘second-class’ citizens.

At the same time, and even under National Party rule, a great deal of redistribution from white to black South Africans took place via the budget. In addition, from the early 1970s onwards, the pervasive edifice of racial laws constructed by the National Party began to crumble under the weight of its own contradictions. More and more racial laws became unenforceable, while from the early 1970s the government made major efforts to improve black education and housing. From 1979 to 1986, important reforms were introduced as regards African trade union rights, freehold ownership of township houses, influx control, group areas, and the goals of ‘separate development’.

By the late 1980s, ‘petty’ apartheid had largely disappeared, while black people (Africans, Indians, and so-called ‘coloured people’) were increasingly moving into supervisory and management positions in the private sector. In the early 1990s, both government departments and larger private sector employers began appointing more black managers and putting significant efforts into a ‘soft’ form of affirmative action based primarily on training and mentoring and the fast-tracking of black people into more senior positions.1

By the 1980s many National Party (NP) supporters had acknowledged the practical failures and deep injustices of apartheid policies. Hence, though the NP might have been able to cling to power for another 20 years (albeit at enormous cost), the fall of the Berlin Wall in November 1989 instead prompted the state president, FW de Klerk, to unban the ANC and other organisations in February 1990. In 1991 De Klerk followed up by repealing all key remaining apartheid laws, including the Population Registration Act of 1950, under which everyone had earlier been classified as white, African, coloured, or Indian.

In 1992 whites voted in a referendum for the continuation of a reform process certain to result in majority rule and the loss of their political power. In 1994 the political transition took place against the backdrop of 25 years of incremental reform and a dramatic softening in white racial attitudes.2

Enormous backlogs in the living standards of black South Africans nevertheless remained, generating widespread agreement on the need for effective measures to help provide redress and increase opportunity. When President Nelson Mandela came to power in May 1994, it seemed the time had finally come when the country could marry its extensive resources to sound policies, thereby stimulating growth and jobs, improving education and living conditions, and providing a realistic prospect of a better life for all.

In his inaugural address as South Africa’s first black president, Mandela emphasised the importance of racial reconciliation. He paid tribute to De Klerk, saying he had turned out to be ‘one of the greatest sons of our soil’. He said he planned to work together with him to build the country and promote racial harmony. ‘Let us forget the past,’ Mandela said, speaking in Afrikaans. ‘What is past is past … Let us work together to make a great country.’ It was not a time for recrimination but a time for joy, as the dreams of all the millions of South Africans who had suffered so greatly under apart­heid could now be made real.3

The same spirit was evident two years later, on 8 May 1996, when the Constitution was adopted in Parliament with the support of almost all political parties. The Constitution identified ‘non-racialism’ as one of its founding values, while the equality clause in the Bill of Rights proclaimed the right of all South Africans to ‘equality before the law and … the equal protection and benefit of the law’. Addressing Parliament in his ‘I am an African’ speech, the then deputy president, Thabo Mbeki, famously said: ‘The Constitution whose adoption we celebrate constitutes an unequivocal statement that we refuse to accept that our Africanness shall be defined by our race, colour, gender, or historical origins. It is a firm assertion made by ourselves that South Africa belongs to all who live in it, black and white … It rejoices in the diversity of our people and creates the space for all of us voluntarily to define ourselves as one people.’4

However, this address was followed on 29 May 1998, a scant two years later, by Mbeki’s ‘two nations’ speech, in which he instead emphasised the racial divide. Said Mbeki: ‘We therefore make bold to say that South Africa is a country of two nations. One of these nations is white [and] relatively prosperous … The second and larger nation of South Africa is black and poor … We are not one nation, but two nations. And neither are we becoming one nation.’5 This speech set the scene for a number of transformation laws requiring a return to racial classification and racial preferences – but this time in the apparent interests of social justice and redress.

The ANC’s case for affirmative action

In mid-April 1994 – shortly before the general election that brought it to power – the ANC summarised the case for affirmative action in employment, enterprise, and land ownership in a policy document entitled ‘Affirmative Action and the New Constitution’.

After the political transition, said the ANC, it could simply ‘confiscate the spoils of apartheid and share them out amongst those who had been dispossessed’, which would have ‘the immediate attraction of correcting historical injustice’. However, this option ‘could not realistically be advanced’ against the background of the negotiated political transition. In addition, it would lead to ‘capital flight, the destruction of the economy, and international isolation’.6

By contrast, affirmative action offered a constructive way of providing ‘real chances’ for apartheid’s victims and new opportunities for millions of people to show their true mettle. In this way, it would in time be possible to achieve a non-racial democracy in which inequality would no longer be linked to race and people could truly regard themselves ‘simply as South Africans … on a colour-blind basis’.7

Affirmative action, the ANC went on, would ‘mainly’ take the form of correcting past injustice through the application of ‘normal and non-­controversial principles of good government’. However, there would also have to be special measures to bar racial discrimination; bring about ‘balance in the armed forces, the police, and the civil service’; and ensure that the workforce as a whole became ‘representative of the talents and skills of the whole population’.8

Black economic empowerment would also be needed, as black people had been barred from ‘the ownership of capital and the decision-making power that goes with it’. Hence, ‘when racist economic laws were repealed, black people had neither land to serve as collateral, nor capital for investment, nor meaningful sources of credit. Nothing was less free in South Africa than enterprise’. BEE was thus required to remove ‘all the obstacles to the development of black entrepreneurial capacity’ and unleash ‘the full potential of all South Africans to contribute to wealth creation’. At the same time, the ANC would ensure that the state did not become ‘an instrument of racially-based extortion and patronage in which friends were favoured, opponents disadvantaged, and bribes accepted’.9

Affirmative action would also be needed to rectify land ownership. ‘Property rights will never be secure as long as the majority believes that existing title has been achieved through wrong rather than right.’ Hence, unless there was rapid land reform, ‘any future economic development would be precarious’. This meant that ‘an active policy of restoring usurped land rights’ would have to be followed, in which land would be made available for housing, as well as to those who wished to farm. Affirmative action in this area would seek to balance the need for appropriate compensation against the importance of affordability.10

Overall, said the ANC, affirmative action offered ‘millions of South Afri­cans … the long overdue chance to come into their own and start enjoying the good things the country has to offer’. However, ‘direct and vocal criticism’ of the policy was now being voiced by those who had ‘benefited from privilege in the past’ and who ‘claimed that affirmative action denied the merit principle … and involved undue state interference in the economy’. These criticisms were unfounded, it said. However, as earlier noted, the ANC also acknowledged that much would depend on how affirmative action was implemented in practice, saying: ‘If well handled, affirmative action will help bind the nation together and produce benefits for everyone. If badly managed, we will simply redistribute resentment, damage the economy, and destroy social peace.’11

This analysis seemed fair and reasonable, helping to generate widespread support for affirmative action of this kind in employment, enterprise, and land ownership. The ANC’s own warning that affirmative action could ‘damage the economy’ and ‘destroy social peace’ was largely disregarded. In subsequent years, the ruling party’s further reasons for racial transformation laws were also accepted as essential to redress and thus endorsed with little critical scrutiny.

Assumptions underpinning transformation laws

The rationale for racial laws was further articulated in 1997 and 1998, when legislation requiring affirmative action in the workplace (the Employment Equity Act of 1998) was unveiled and then adopted. Much the same reasoning underpins other transformation laws, including BEE requirements. This rationale is thus worth examining in some depth – especially as it rests on a number of assumptions that tend to be accepted at face value, but are in fact flawed or unfounded.

Demographic representivity is the norm

The Employment Equity Act is premised on the assumption that demographic representivity would be evident in every aspect of society if this ‘norm’ were not being undermined and thwarted by racial discrimination. This argument was put forward in 1998 by Firoz Cachalia, an ANC office-­bearer in Gauteng, who said: ‘Since ability is randomly distributed among the entire population, black and white South Africans should be represented in the workforce according to their share of the overall population. If whites instead consistently outnumber blacks in management, skilled jobs, and the professions, then for those who reject the idea of superior and inferior races, the only explanation is that white dominance is the result of racial discrimination.’12

Though Cachalia’s view seems superficially convincing, it overlooks relevant differences in human capital as well as variations in other important factors, such as median age. This last factor is also relevant in the United States where, according to US expert in affirmative action, Professor Thomas Sowell, half of all Mexican-Americans are either infants, children or teenagers. By contrast, most high-level occupations require tertiary education and long years of experience and are typically filled by people aged 40 or more. Comparing the number of Mexican-Americans in high-level occupations with the overall size of the Mexican-American population suggests a high degree of ‘under-representation’ of this group at these levels. However, once age is taken into account, the picture changes to the point where such under-representation is no longer evident.13

In South Africa there are also salient differences in age and education levels, which are generally overlooked by proponents of demographic proportionality. In 1999, the year the Employment Equity Act came into operation, Africans accounted for 70% of the economically active population (EAP) at national level – the EAP being defined as all those between the ages of 15 and 64 who work, or wish to work. According to the Act, since Africans made up 70% of the EAP, this meant that they should also constitute 70% of managers in both the public and the private sectors. However, in 1999 only 25% of Africans fell within the 35-64 age bracket generally considered eligible for high-level occupations. In addition, though degrees are often required or advisable for management posts, only 1.5% of the African population then held a tertiary qualification. This meant that the pool of African people from which managers could realistically be drawn was far smaller than the Act assumed.14

Such differences in age and education are sufficient in themselves to preclude white and black South Africans from fanning out into management posts in proportion to each group’s share of the total population. They also help explain why the presumed ‘norm’ of demographic representivity is a myth, rather than a reality, in heterogeneous societies around the world. Writes Sowell: ‘A global perspective makes it clear that the even distribution or proportional representation of groups in occupations and institutions remains an intellectual construct defied in society after society.’

Donald L Horowitz, a professor at Duke University in the United States, adds that ‘few, if any societies, have ever approximated demographic proportionality’. According to Myron Weiner of the Massachusetts Institute of Technology, ‘it is ethnic inequality – rather than the obverse – that is universal’ (emphasis as in the original). Adds Professor Weiner: ‘All multi-­ethnic societies exhibit a tendency for ethnic groups to engage in different occupations, have different levels (and, often, types) of education, receive different incomes, and occupy a different place in the social hierarchy.’15

White racism continues to bar black advancement

The Employment Equity Act also rests on the assumption that pervasive white prejudice continues to restrict demand for black managers, especially in the private sector. However, this overlooks the fact that, even in the apartheid era, the National Party government was often unable to prevent white employers from giving skilled jobs to black people in defiance of the laws reserving such jobs for whites. So impractical did it become to enforce job reservation rules that the former government had little choice but to repeal most of them by the end of the 1970s. Even white farmers, who were generally supporters of the apartheid system, used their clout with the government not to strengthen the implementation of job reservation but rather to avoid state intervention in their use of skilled black labour. As a result, notes Steven Farron, formerly a professor at the University of the Witwatersrand, agricultural employees, even in skilled and foremen’s jobs, came to be nearly all black, despite high Afrikaner rural unemployment.16

Moreover, as demand for skilled labour grew in the 1960s, business repeatedly urged the government to ease restrictions on African employment. In 1973 the prime minister, John Vorster, finally yielded to this pressure, saying his government would no longer stand in the way of blacks moving into higher jobs. This resulted in considerable advances for Africans and a subsequent narrowing of racial inequality. Hence, whereas in 1970 some 71% of personal income had been in the hands of whites and 20% in the hands of Africans, by 1990 the white share had dropped to 54% and the African share had grown to 33%. This signalled a decrease of 24% for whites and an increase of 67% for Africans.17

After the transition to majority rule in 1994, the private sector had still more reason to embrace black advancement in the workplace. By September 1997, shortly before the Employment Equity Bill was published, 90% of the 150 large employers surveyed by a human resources consultancy, FSA-Contact, had affirmative action programmes in place, even though this was not required by law. The proportion of black people in senior management posts at these firms thus increased from 5% in 1995 to 12% in 1998 – and was projected to rise further to 21% in 2001, an overall increase of some 325%. In addition, the proportion of black people in middle management increased from 10% to 21% between 1994 and 1998, and was projected to increase to 29% by 2001.18

Given the shortage of skilled black South Africans of an appropriate age for management posts, this increase in black representation was a notable achievement. It was made all the more remarkable by a simultaneous increase in the proportion of black managers in the public service. Between 1994 and 1997, this grew from 6% to 38% at national level and, from the same baseline, to 66% in provincial administrations.19 This rapid rise in black management in the public sector significantly reduced the pool of black candidates available for private sector posts.

Not surprisingly in these circumstances, data gathered by FSA-Contact showed that 63% of employers had experienced the ‘poaching’ of their black managers by firms willing to pay significant premiums to attract them to their staff.20 This level of poaching – coupled with a willingness to pay black people premiums ranging from 10% to 20% above normal salaries – testified to an enormous unmet demand for black managers in the private sector, rather than a racist refusal to employ them.

The black underclass will benefit

The Employment Equity Act is further premised on the assumption that it will bring substantial and lasting benefits to a poor black underclass. The initial explanatory memorandum accompanying the EE Bill thus emphasised the plight of the poor and held out the implicit promise that the statute would play an important part in their upliftment.

However, experience in other countries has repeatedly shown that the poor gain little from affirmative action. In India, Malaysia, Sri Lanka, and the United States, affirmative action has benefited a relative elite within the disadvantaged group – what India calls ‘the creamy layer’ – while the truly marginalised have derived little or no help from it.21 The same is true in South Africa, where millions of unemployed and unskilled people have little prospect of ever attaining management jobs or benefiting in other ways from empowerment laws.

Race must be used to get beyond race

The Employment Equity Act is also based on the assumption that ‘in order to get beyond racism, we must first take race into account’.22 The statute assumes that classifying people by race, counting them by race, and giving preferences to those identified as ‘black’ provides the best means of ending racial discrimination and overcoming the persistent effects of previous racial prejudice. However, such policies risk entrenching racial consciousness. The declared intent might be to end racial prejudice, but the actual effect of any race-based law may be to promote it instead.

The ANC government has often sought to justify its racial rules on the basis that colour-blind requirements would ignore black poverty and protect white privilege.23 However, this is a red herring. Policies to liberate the poor and reduce inequality could easily be directed at those who fall below a certain income level, most of whom would in any event be black.

The real rationale for racial laws

The reasons put forward by the ANC for employment equity and other racial laws are not the true rationale for these measures. A large part of the explanation lies rather in the ruling party’s long-standing commitment to the national democratic revolution (NDR) it has been pursuing since the early 1960s. This national democratic revolution is aimed at giving the ANC a hegemonic control over all ‘levers of power’ – including the judiciary, the press and civil society – while ushering in a form of ‘economic emancipation’ inconsistent with free markets and private sector-led growth.

Though the concept of the national democratic revolution was developed and refined by Soviet strategists in the late 1950s, the idea can be traced back to the theory of imperialism developed by Lenin in 1917. According to Lenin, the living standards of the working classes in industrialised Europe were then improving rather than deteriorating (contrary to what Karl Marx had predicted) solely because the imperial powers were able ruthlessly to exploit the brown and black masses in their colonies.24

This theory won wide acceptance among nationalist movements in many parts of the African continent, but was difficult to apply to South Africa because the country had gained independence from Britain as early as 1910 and so ceased to be a colony. However, in 1950 the Communist Party of South Africa (CPSA) found a way around this obstacle by stating that South Africa had ‘the characteristics of both an imperialist state and a colony within a single, indivisible, geographical, political and economic entity’. In this ‘colonialism of a special type’, white South Africa was effectively an ‘imperialist state’ and black South Africa was its ‘colony’. This implied that the wealth of white South Africans had nothing to do with enterprise, skill, or technological advantage but derived solely from the exploitation and impoverishment of black South Africans.25

In the 1950s, as the process of decolonisation in Asia and Africa began to accelerate, the Soviet Union started to examine how the concept of ‘national democratic revolution’ could be used to draw newly liberated states into Moscow’s orbit. Later that decade, the central committee of the Communist Party of the Soviet Union formed a special group of advisers to work on this issue. According to this special group, the defining features of national democratic revolutions are that ‘they lead to the elimination of colonial … oppression and are also latent with anti-capitalist tendency … paving the way for transition to socialist reconstruction’.26

According to these Soviet theorists, South Africa had particular potential to ‘shorten the stage of the national democratic revolution’ and move swiftly to socialism. This was largely because of its developed economy, which meant it had an industrialised labour force that could be drawn towards the South African Communist Party (SACP), the underground successor to the CPSA. Even in South Africa, however, a transitional period, in which a national democratic revolution would be necessary, was not ruled out.27

In 1962 the thinking of these Soviet theorists was clearly evident in the SACP’s new programme, entitled The Road to South African Freedom. This document began by identifying South Africa as a ‘colony of a special type’ in which the white minority had gained its wealth solely through the ruthless dispossession and exploitation of the black majority over centuries of colonial rule. This meant that the ‘colonial state of white supremacy’ would have to be overthrown and ‘an independent state of national democracy’ established in its place. Towards this end, the existing state machinery would have to be destroyed. Hence, all public institutions, including the civil service, the judiciary, the police, and the army would have to be re-staffed with black people and made ‘fully representative of the population of South Africa’. Once the state had been ‘democratised’ in this way, its main task would be to suppress the former ruling classes and further transform society. Since resistance was to be expected, ‘the utmost vigilance would have to be exercised against those who would seek to organise counter-­revolutionary plots … or restore white colonialism’.28

The theory of ‘colonialism of a special type’ and its corollary – the need for a national democratic revolution to overturn its consequences – was accepted and formally endorsed by the ANC at its national policy conference in Morogoro (Tanzania) in 1969. The Strategy and Tactics document adopted at this conference echoed the SACP’s perspective in stating: ‘The material well-being of the white group and its political, social, and economic privileges are, we know, rooted in its racial domination of the indigenous majority.’ The document also committed the ANC to a national democratic revolution that would counter ‘the historical injustices perpetrated against the indigenous majority’ by destroying existing economic and social relationships. This would give rise to a new society based on the core provisions of the Freedom Charter.

The Freedom Charter had been adopted at Kliptown (Soweto) in June 1955 and was supposed to have been spontaneously drawn up by the dispossessed black masses. However, its wording was greatly influenced by the SACP and often seemed to reflect a Marxist view. The charter thus called for the land to be ‘re-divided among those who work it’, for the ‘national wealth’ of the country to be restored to the people, and for ‘the mineral wealth beneath the soil, the banks, and monopoly industry’ to be transferred to ‘the ownership of the people as a whole’. The charter was endorsed by the ANC as its official programme in 1956, despite objections from a number of nationalists that this would give communists too powerful an influence over the ANC. So great was their concern about communist domination that many of these nationalists broke away from the ANC in 1959 to form the Pan-Africanist Congress.29

In the six decades since the document was adopted, socialist policies have visibly failed in many countries, including Russia itself. Despite this, the Freedom Charter remains the lodestar of ANC policy. So too does the concept of the national democratic revolution, even though this idea was repudiated by Russian intellectuals after the disintegration of the Soviet Union in 1991. Instead of updating its ideas, the ANC remains committed to pushing ahead with the national democratic revolution in South Africa – though it does acknowledge that the collapse of communism has made this goal more difficult to achieve.

Why the ANC remains caught in this time warp is not altogether clear. However, the SACP has dominated the ANC for many years, while both organisations were staunch allies of Moscow for more than six decades. During this period, both became steeped in Soviet ideology. In addition, in the ten years before 1994, the ANC became deeply indebted to Moscow strategists who helped it implement a ‘people’s war’, which weakened or destroyed its black rivals and gave it significant dominance over the new South Africa. It is because of deep ties of this kind, says Irina Filatova, a Moscow-born historian who has written extensively on the long-standing links between the Soviet Union and South Africa, that the Soviet NDR theory ‘still constitutes an integral part of the vision and the programmes of both the ANC and the SACP … and impacts strongly on ANC policies’ in South Africa today.30

The national democratic revolution and ‘transformation’ policies

While the Freedom Charter outlines the overall objectives to be attained, the ANC’s five-yearly Strategy and Tactics documents identify key goals for the next five-year period and sketch the means whereby these aims are to be attained. The Strategy and Tactics documents adopted by the ANC at its national conferences since 1994 identify the over-arching objective of the national democratic revolution as ‘the liberation of Africans in particular and black people in general from political and economic bondage’. According to the ANC, it is only once this degree of emancipation has been achieved that South Africa will become a full democracy.31

Why bringing an end to ‘political … bondage’ should be necessary when the country has already moved from white minority rule to control by the black majority is not explained. However, Marxist theory holds that no society can be a true democracy unless it has become a ‘people’s democracy’ or socialist state. In addition, freedom from ‘economic bondage’ requires, in ANC thinking, the full ‘economic emancipation’ of the country. As Filatova notes, anyone familiar with Marxist terminology knows that ‘economic emancipation’ can never be achieved under capitalism.32 Though the Strategy and Tactics documents shy away from spelling this out, the implication is that the core goals of the national democratic revolution cannot be attained under a multiparty system of liberal democracy, or while free markets and private ownership remain widespread.

The ANC’s commitment to a continuing revolution aimed at socialist outcomes has enormous ramifications for the country. However, neither the goals of the national democratic revolution nor the thinking that underpins it have ever been given much attention by the media. The topic seems to be off-limits to the press, which generally ignored the first stage of the revolution – the people’s war which brought the ANC to power – and now largely overlooks the national democratic revolution and its ramifications.

Also generally ignored is the ANC’s perspective that the national democratic revolution effectively exempts it from having to comply in full with the country’s Constitution (or with any other agreement the organisation has previously endorsed). In the ANC’s view, ordinary political parties may commit themselves to binding outcomes that cannot be altered save by mutual consent, but a national democratic movement with a historic mission cannot be deflected from its long-term objectives by the tactical concessions it might be compelled to make along the way. Such an organisation may find it expedient at various times to enter into compromise agreements that will help to strengthen its position. But, once the balance of forces has shifted in its favour, it will have no hesitation in disregarding or circumventing the compromises earlier made.33

The practical implications of this stance for the constitutional settlement concluded between 1993 and 1996 are profound, but remain generally unexplored. Most of the political parties involved in the talks at that time believed they were negotiating in good faith for a constitutional settlement that would be accepted by all as a binding pact. For the ANC, however, the political transition in April 1994 was merely an important milestone on the road to the full implementation of the national democratic revolution. In 1995 Mbeki told an ANC conference that the negotiations for an interim constitution were ‘contrived elements of a transition’ necessary to end white domination. At no time did the ANC consider them as ‘elements of permanence’, he said. However, the fact the ANC has never regarded the constitutional settlement as binding on it has been overlooked by most com­men­tators on the country’s ‘miracle’ transition.34

From the ANC’s perspective, the Constitution contains many provisions – including guaranteed and justiciable socio-economic rights of access to housing, health care, social security, and the like – which are useful in building the power of the state and advancing the national democratic revolution. However, the Constitution also has other provisions – particularly its guarantees of property rights, multiparty democracy, and fundamental civil liberties – which inhibit the fulfilment of its revolutionary goals.

This did not matter so much in the first 15 years after 1994, for the collapse of the Soviet Union in 1991 had ushered in a very different global environment in which (as the ANC warned at its Stellenbosch national conference in 2002), ‘a simplistic and dramatic abolition of the capitalist market, with the state seizing the means of production’ would have been ‘a sure recipe for the defeat of the NDR’.35 In this changed world, the ANC could at best make small and incremental steps – often under the rubric of affirmative action and BEE – towards its revolutionary goals. Since 2008, however, the economic crisis in Europe, the United States, and elsewhere has been widely hailed as evidence of the collapse of the capitalist model. Many in the ANC and the SACP are thus impatient to speed up the pace of the national democratic revolution – but know that aspects of the Constitution could hinder this process.

The ANC’s disdain for constitutional constraints has thus become more evident in recent years. In September 2011, for instance, the then deputy minister of correctional services, Ngoako Ramatlhodi, said the ANC had been forced to make ‘fatal concessions’ at the time of the political transition. Given the balance of forces at the time – and especially the collapse of the Soviet Union – the ruling party had accepted a Constitution that ‘emptied the legislature and executive of real political power’ and ‘immigrated (sic) the little power left [to them] to civil society and the Judiciary’.36

It is not true, however, that the Constitution was ‘forced’ on the ANC. On the contrary, at the time the interim text was adopted in 1993, Joe Slovo, chairman of the SACP and one of the ANC’s key negotiators, described it as ‘a famous victory’. The overall transition package represented ‘a score of 16 out of 16 for the strategic objectives of the ANC alliance’, he said. In the crucial closing stages of the talks, the ANC had shifted the balance of forces so far in its favour as to bring about ‘a complete demoralisation in the ranks of our opposition’. Slovo also stressed that the ANC had not agreed to anything that would compromise the further stages of the revolution, adding: ‘Looking at the result as a whole, I can say without hesitation that we got pretty much what we wanted.’37

It is also not true that the final Constitution (which was negotiated by a constituent assembly dominated by the ANC) robs the state of essential powers, as Ramathlodi further claims. On the contrary, the text gives the government all the powers normally accorded democratic states, along with the capacity to implement affirmative action and other policies aimed at providing effective redress for apartheid wrongs. But it also protects the rights and freedoms of citizens against pervasive state control and requires respect for the rule of law. In addition, it reflects the broad consensus at the time of the transition that the new South Africa must be a constitutional democracy in which legislative and executive action would be subject to judicial review – and could thus be struck down for inconsistency with guaranteed rights and other constitutional principles.

Behind this consensus, moreover, lay the knowledge of how parliamentary sovereignty had been abused by the National Party to harm the black majority and the wider society – and a determination that this must never be allowed to happen again. The ANC’s attempt to rewrite history in this regard is disingenuous. It also points to the ruling party’s willingness to white-ant or even disregard the country’s founding document.

Goals and strategies of the national democratic revolution

Since 1994, the ANC has adopted four key Strategy and Tactics documents setting out the current tasks of the national democratic revolution and weighing up the balance of forces that either assist or obstruct their implementation. The Mafikeng Strategy and Tactics document, adopted in 1997, described the principal goals of the national democratic revolution for the next five years. The Stellenbosch national conference in 2002 reaffirmed the Mafikeng document as the relevant guide to the next five years but also adopted a Preface to it, which states, among other things:

A critical element of the programme for national emancipation should be the elimination of apartheid property relations. This requires: the deracialisation of ownership and control of wealth, including land and equity; affirmative action in the provision of skills and access to positions of management; … and systematic and intelligent ways of working in partnership with private capital in a relationship … defined by both unity and struggle, co-operative engagement and contestation on fundamental issues. It requires the elimination of the legacy of apartheid super-exploitation and inequality, and the redistribution of wealth and income to benefit society as a whole, especially the poor.38

The Preface noted that this programme would involve ‘a continuing struggle’ that would intensify over time. ‘Because property relations are at the core of all social systems, the tensions that decisive application of this objective will generate will require dexterity in tact and firmness in principle.’39

The Polokwane Strategy and Tactics document, adopted in December 2007, describes the ANC as ‘a disciplined force of the Left, organised to conduct consistent struggle’. Emphasising the need to ‘change colonial production relations and the social conditions of the poor’, it reaffirms that ‘the main content of the NDR is the liberation of Africans in particular and blacks in general from political and socio-economic bondage’. This requires ‘a systematic programme to correct the historical injustice’, while the need for such affirmative action will ‘decline in the same measure as all centres of power and influence became broadly representative of the country’s demographics’. The document adds that ‘a national democratic society … requires the de-racialisation of ownership and control of wealth’ as regards land, management, and the professions.40

The Strategy and Tactics document adopted by the ANC at Mangaung (Bloem­fontein) in December 2012 endorses the Polokwane document and adds to it a Preface reaffirming the need to ‘eradicate the legacy of apartheid colonialism’. The Preface also urges further ‘interventions … to speed up change’ as part of ‘a second phase’ in the country’s transition. It once again calls for the ‘eradication of apartheid production relations’, reaffirms ‘the centrality of the Freedom Charter as our lodestar’, and speaks of the need to confront ‘the dominance of the capitalist system’.41

The ANC’s Strategy and Tactics documents are public statements that often express worthy aims: to heighten state efficiency, increase economic growth, maintain macro-economic discipline, improve living standards, counter the HIV/Aids pandemic, enhance education, and reduce inequality. However, although the documents recognise the importance of growth, their main emphasis is on redistribution. The more recent Polokwane and Mangaung documents also stress that the balance of forces has shifted substantially in favour of a more rapid implementation of the national democratic revolution. The Mangaung document, in particular, calls for a ‘second phase’ in the transition, which requires more radical policies and ‘decisive action to effect thorough-going economic transformation’.42

The Mangaung Strategy and Tactics document also stresses the need to pursue affirmative action until such time as ‘all centres of power and influence … become broadly representative of the country’s demographics’. Since the goal of demographic representivity is inherently unattainable, this means that affirmative action will persist for the foreseeable future. Moreover, given the fact that Africans, ‘coloured’ people and Indians cumulatively comprise some 91% of the South African population, the targets for BEE and land reform that have thus far been set (a 25% shareholding for blacks in listed companies, for instance, and the transfer of 30% of agricultural land to black people) are likely to be revised upwards over time.43

However, radical redistribution of the kind envisaged overlooks the age profile of the African majority, the skills shortage among black people, and the limited capital available to Africans to pay for major stakes in companies and other assets. Hence, full implementation of the national democratic revolution could easily undermine South Africa’s economy and constrain the rapid rates of growth essential to future prosperity. The scale of redistribution it requires is also contrary to the spirit of South Africa’s negotiated transition and in conflict with key provisions of the Constitution and the Bill of Rights.44

‘What is also striking about these demands is their extremity,’ writes political analyst James Myburgh. ‘When white minority rule ended in 1994, there was widespread agreement among all sectors of the population that black advancement was essential, as were major improvements in the living conditions of the African majority. There was also a chronic skills shortage in the country which the white population was not large enough to meet. The number of blacks with tertiary qualifications was growing, while white racial attitudes towards blacks had changed dramatically. If policies aimed at faster economic growth had been vigorously pursued by the new government, there would have been ample capacity to absorb a rising black middle class into both the private and public sectors without the need to displace whites.’45 However, this evolutionary approach has consistently been trumped by the ideological requirements of the national democratic revolution and has never been attempted.