Zille’s comments followed after the DA lost a court bid to force the state to stop using Broad-Based Black Economic Empowerment (BBBEEE) status, race, gender, age or disability when considering who gets Covid-19 aid.
Constitutional law experts, and a Nelson Mandela Foundation researcher, however, said apartheid legislation cannot be compared to democratic-era legislation as the former was designed to exclude, exploit and oppress the majority.
Constitutional law expert Elmien du Plessis said today race is occasionally used in legislation to undo the discrimination caused during apartheid, but cannot be used to oppress any race in terms of the Constitution.
Du Plessis, therefore, believes that there are much less race-based laws in South Africa than under apartheid, but added that she does not know which “racist laws” Zille might have been referring to. Zille did not respond to a request for comment.
Race-based laws under apartheid, among others, included:
- Natives Land Act of 1913 which limited land ownership by black people to 8% of the land area of South Africa.
- The Group Areas Act of 1950 which divided urban areas into “group areas” in which ownership and residence were restricted to certain population groups.
- Pass laws, a collection of laws that regulated the movement of black South Africans, requiring them to carrying passbooks to give them permission to enter certain areas.
- The Mines and Works Act of 1911, later amended, restricted black people to entry-level jobs in mines and companies across the country.
- The Bantu Education Act of 1953 formalised segregation in education facilities, and forced the closure of several missionary schools.
- The Immorality Act of 1927 prohibited extramarital sex between white people and people of other races.
- The Prohibition of Mixed Marriages Act of 1949 forbade marriages between white people and people of other races.
- The Prohibition of Political Interference Act of 1968 prohibited multi-racial political parties.
- Reservation of Separate Amenities Act of 1953 which legalised the racial segregation of public premises, vehicles and services. Only public roads and streets were excluded from the Act.
University of Pretoria public law professor Bernard Bekink said to the best of his knowledge, the only legislation currently making use of race in South Africa is:
- The Broad-Based Black Economic Empowerment Amendment Act of 2013 which aims to create incentive schemes to support black-owned and managed enterprises, among others.
- Prevention of Unfair Discrimination Act of 2000 which aims to prevent unfair dismissal or harassment.
- Employment Equity Amendment Act of 1998 of 2013 to, among others, regulate the prohibition of unfair discrimination against employees, and ensure equitable representation.
Bekink said article nine of the Constitution is pretty clear that no South African may be discriminated against on the basis of race or sex, unless “discrimination is fair” such as trying to undo the legacy of apartheid.
“The big difference between apartheid legislation and democratic legislation, is that all legislation has to be tested against the Constitution which enshrines human rights,” Bekink said.
“If any legislation discriminates, it has to be proved that it is necessary to improve equality or it will be ruled unconstitutional.” He said a situation such as apartheid repeating itself, where people’s movement, relationships and even occupations are regulated in terms of race, is, therefore, highly unlikely.
Du Plessis said the contentious issue of land reform does not make use of race, and even white South Africans have placed successful land claims in terms of it.
Nelson Mandela Foundation researcher Patronella Nqaba said apartheid legislation existed to dehumanise and exclude black people from the processes in the country.
“Today laws exist to undo the horrid legacy of apartheid, and tweets such as Helen’s undo the progressive work many are doing towards racial reconciliation in this country,” Nqaba said.
“Helen’s tweet amounts to apartheid denialism.”
Du Plessis said there exists space to debate whether the “redress” legislation introduced since the end of apartheid, such as BBBEE, has the desired outcomes, but when someone uses “derogatory language” they take the risk of closing down the debate.
“For example, an oversimplification of the issue will not bring anyone closer to a meaningful conversation with doable solutions,” Du Plessis said.