In a seminal Constitutional Court case — City of Tshwane Metropolitan Municipality v AfriForum and Another — the court was unequivocal about the need for redress.
“The injustices of the past are not to be pampered or approached with great care or understanding or sympathy. And the immeasurable damage racism or cultural monopoly has caused requires that stringent measures be taken to undo it,” reads part of the judgment written by chief justice Mogoeng Mogoeng.
His point was that our past, as most know, is dark and horrible and, as a consequence, must be dealt with decisively.
The issue of redress was placed on the national debate this week by the DA through its “Economic Inclusion for All Bill”. This is the DA’s response to the so-called failure of the BBBEE, which it says has benefited a select few.
“Instead of redressing past injustices, BBBEE has entrenched a millionaire class of politically connected insiders,” says the DA.
It proposes that the failed BBBEE policy be replaced by a policy that removes the racial prism through which empowerment is seen.
Decoded, this means the country must, in pursuit of a constitutional injunction to redress racial imbalances, not purposively pursue a racial approach to empower those who were subject to oppressive laws on the basis of the colour of their skins.
The DA must stop speaking in forked tongues about correcting historical injustices if it wishes to attract the majority of South Africans to its ranks.
Essentially, the DA is arguing that because the ANC has “failed” to empower black people, empowerment must now be diluted to include all poor people, regardless of race.
Yet this is a constitutional mandate confirmed through case law. In the Minister of Finance v Van Heerden case, then justice Dikgang Moseneke wrote: “Remedial measures are not a derogation from the promise of equality but a substantive and composite part of it.”
The point Moseneke was making is that an act of parliament like the BBBEE act is mandated by the constitution itself and not merely permitted by it.
What is clear is that the transformative mandate from the constitution is not only clear, it’s reinforced by decisions of the highest court in the land. And yet, a political party seeking to topple the ANC from power, seeks to use the ANC’s failure to empower the majority as an opportunity to dilute transformation.
This, of course, is the same party that has strongly objected to the Bela Act and the Expropriation Act.
The DA must stop speaking in forked tongues about correcting historical injustices if it wishes to attract the majority of South Africans to its ranks. Genuine inclusion cannot be colour blind in a country where poverty, landlessness and economic exclusion still wear a black face.
The DA’s observation about a select few benefiting from some empowerment scheme rings true in some respects. Indeed, a few blacks who are politically connected are looting the country. But why not come up with a strategy that deals with corruption without negating transformation?
Their arguments are fundamentally flawed and rooted in the very exclusion they purport to fight while labelling their bill as inclusive.
President Cyril Ramaphosa responded: “If anyone wants an amendment to the BEE Act, they must table their proposals and they must be taken for discussion in parliament. At the moment, BEE policies, legislation and regulation apply, without any dilution whatsoever.”
While he too must not respond as if the act is without limitations and imperfections, the DA’s response will make a bad situation worse.
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