MARTIN VAN STADEN | Ramaphosa is wrong (again)

President Cyril Ramaphosa told the ANC Limpopo elective conference that those calling for an end to BEE and affirmative action “are dreaming”, and these policies are a “direct requirement of the South African constitution”.

This is hardly the first, and certainly will not be the last time, Ramaphosa brazenly misrepresents the highest law in the land.

Given South Africa’s brutal experience with state-driven racial engineering, it should be unsurprising that the constitutional text clearly prohibits race-based economic engineering of the kind embodied in BEE.

Section 1(b) of the constitution declares South Africa is founded on values including nonracialism. These are founding provisions that may not be “balanced” away — in fact, every other provision in the constitution must be interpreted and applied in a manner that respects and advances them.

Ramaphosa and his ideological fellow travellers in the legal fraternity — from attorneys and advocates right through to justices of the Constitutional Court — have long sought to misinterpret section 9(2) of the Constitution to enable their envisioned racial engineering. They know the only way to overcome the requirement of nonracialism is a countervailing but explicit authorisation of racialism in the constitutional text, and they sought to locate it here.

Section 9(2) provides constitutional equality “includes the full and equal enjoyment of all rights and freedoms”, the achievement of which may be promoted through “legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination”.

Note how there is no reference to skin colour to be found. Elsewhere, for instance, the constitution explicitly requires the judiciary must in general be racially representative of South African society, which is a narrow proviso to the guarantee of nonracialism. Without such an explicit authorisation in section 9(2), this subsection must be read consistent with the founding value of nonracialism.

It therefore must be read as authorising measures to advance the disadvantaged, not racial groups as such. “Disadvantaged” is properly understood in socioeconomic terms — destitution, lack of education, limited opportunities — not a clever constitutional euphemism for innate racial biology.

A nonracial reading aligns perfectly with South Africa’s demographics: the primary beneficiaries of genuinely empowering policies would be the poor black majority. That outcome is uncontroversial. What is objectionable is the ANC’s continued insistence on using race as the blunt instrument of selection.

This same logic applies to Section 217 of the constitution, which governs public procurement. Again, the constitutional text speaks of advancing the disadvantaged, not racially defined groups. The primary procurement obligation remains fairness, equity, transparency, competitiveness and cost-effectiveness. Race-based preference systems that inflate costs, distort markets and entrench patronage directly undermine these imperatives.

The Free Market Foundation and Solidarity Research Institute’s pioneering 2025 study quantified the damage. “Broad-based” BEE imposes annual direct compliance costs of R145bn to R290bn (2% to 4% of GDP), with ownership and enterprise & supplier development alone accounting for tens of billions. Including dynamic effects — foregone investment, slower growth and lost opportunities — the policy has shaved 1.5% to 3% off annual GDP growth and cost up to 192,000 jobs per year. Cumulatively, the drag exceeds R5-trillion.

These figures represent real businesses not started, real jobs not created, and real destitution not alleviated. Why, then, does the ANC leadership (and more besides) cling so tenaciously to race law, as illustrated by the South African Institute of Race Relations’ Index of Race Law? The answer lies in political economy, certainly not constitutional fidelity.

The policy provides a powerful mechanism for patronage, rent-seeking and the extraction of resources from the productive economy under the respectable guise of “transformation”. It allows the dominant party in government to direct economic levers, reward connected insiders and maintain a network that sustains its power base.

A shift to nonracial, merit-based, opportunity-expanding policies would dismantle that extractive model. Genuine empowerment through employment, deregulation and economic growth threatens the very architecture of ANC political control.

Ramaphosa, often described as a “constitutional scholar”, knows better. The constitution’s text, structure and founding values point unambiguously toward nonracialism as the governing principle.

Sections 9(2) and 217 permit targeted assistance to those who are actually disadvantaged by discrimination — which, applied without racial lenses, would obviously primarily benefit black South Africans — but they do not licence perpetual racial classification and discrimination in law and policy. Again, given our history, to interpret them otherwise amounts to real constitutional malpractice, regardless of whether your title is “professor”, “president” or “judge”.

Thirty years into democracy, South Africa cannot afford to treat nonracialism as a mere rhetorical flourish. It is the (perhaps stillborn) cornerstone of our constitutional order. Policies that divide citizens by race, inflate costs, deter investment and concentrate benefits among a politically connected elite are evidently the thing keeping millions destitute.

The “dream” that must end is not the aspiration for broad-based prosperity. It is the ANC’s insistence that race-based extraction is constitutionally mandated. True constitutional fidelity demands nonracial public policy that recognises merit and grows the economic pie rather than fighting over shrinking slices.

Only then can we build the united, nonracial society the constitution envisions.

• Van Staden is head of policy at the Free Market Foundation.