Rescue SA Civil Rights Alliance (RSACRA) has launched a landmark constitutional challenge in the Gauteng Division of the High Court in Pretoria today, challenging the constitutionality of race-based laws currently on South Africa’s statute books.
Director of the alliance, Errol Naidoo says, the application is grounded in the Constitution, and contends that the current race-based legislative framework is irrational, unlawful, and constitutionally unsustainable on several grounds.
“After approximately 30 years of constitutional democracy, these measures have not produced broad-based advancement, have disproportionately benefited a limited group of individuals, and have coincided with economic decline and reduced overall prosperity. As a result, measures that were intended to be temporary and remedial have become permanent, self-sustaining, and disconnected from their original purpose,” he said in a media briefing in Cape Town today.
Senior counsel advocate Mark Oppenheimer will argue before the court that at the core of the challenge is the argument that there is currently no lawful statutory mechanism defining or regulating how race is to be determined, following the repeal of the Population Registration Act 30 of 1950.
Despite this, numerous laws and policies continue to rely on racial classification as a gateway to employment, procurement, licensing, and economic benefits, according to the alliance, thereby creating a system that they describe as uncertain, arbitrary, and inconsistent with the rule of law.
Non-racialism under the spotlight
The application further argues that the framework offends the founding constitutional principle of non-racialism by entrenching race as a decisive factor in law and policy, and that it is inconsistent with international law, which permits remedial measures only where they are temporary and subject to sunset clauses, provisions absent from the current legislation.
Naidoo added: “The legislation contains no sunset clauses, no measurable benchmarks, and no clear endpoint to determine when its objectives have been achieved. The state cannot justify the indefinite continuation of these measures on the basis that their objectives have not been achieved, particularly where such failure may be attributable to poor implementation, maladministration, or corruption.”
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Laws to be challenged include the Employment Equity Act; Broad-Based Black Economic Empowerment Act; Preferential Procurement Policy Framework Act; Public Procurement Act; Mineral and Petroleum Resources Development Act; Skills Development Act; National Small Enterprise Act and the National Empowerment Fund Act.
Not about abolition
The relief sought by RSACRA does not seek to abolish all legislation, but rather to declare the relevant measures constitutionally invalid to the extent that they rely on racial classification without lawful criteria, lack measurable outcomes, and operate without temporal limits.
The application also seeks a suspension period to allow Parliament to remedy the identified defects, as well as an interim regime to prevent coercive or unlawful classification during that period.
“This case does not seek to deny the injustices of apartheid or the need to remedy past discrimination. Instead, it asks whether the Constitution permits the State to continue using race as a permanent legal category without clear legal standards, objective criteria, measurable goals and a defined endpoint,” said Naidoo.
“Non-racialism requires the state to move beyond race-based governance and to adopt lawful, rational and targeted measures based on actual disadvantage, concluded.
Respondents include the President, Government of South Africa, Parliament, and multiple ministers responsible for administering the impugned statutes. Interested organisations and members of the public may seek admission as amici curiae in terms of Rule 16A.
