“Some people got everything, some people got nothing.
Some people got hopes and dreams,
some people got ways and means.” – Survival: Bob Marley
In his signature style of fusing Jamaican ska, rock- steady and reggae, Bob Marley lyrically captures the objective reality of the South African situation. A practically dual economy with one of the highest rankings of inequality in the world. In paraphrasing Thabo Mbeki’s Two Nations speech, Hirsch describes South Africa as consisting of “a reasonably well-educated, dynamic, adaptive society that is well situated for further advance in the global division of labour. This society remains largely, if no longer entirely, white; then there is the large world of poverty, exclusion and humiliation which remains a lot of most, if far from all, blacks: the ‘second economy’. (Hirsch, 2005)
Many years later, we remain two nations. Divided by a long history of national oppression and class exploitation. One section of South Africa lives in squalor and lack in the belly of the compounds designed to dump cheap labour for the sustenance of the Mineral Energy Complex, the backbone of that erstwhile economy of the few. The other lives in the upmarket suburbs with access to spaces like Sun City, Where Mwalimu Julius Nyerere went on a tour and exclaimed at the abundance and luxury the other nation within a nation has. It is said that Mwalimu joked that if he had to sleep in Sun City, he would have requested that a tent be pitched for him within the grounds to avoid parting with so much a price.
I paint this picture of the material reality of the South African situation because many, in their intentional attempt to dilute the true meaning and intent of Broad-Based Black Economic Empowerment, has given it an isolated interpretation from our historical context. A context about which we lament in hushed tones because even our reference to the persisting effects of the colonial and apartheid projects on the state of the nation has also been successfully demonised in the Boardrooms and Golf courses. We continue to speak these truths though, because like George Orwell, we believe that telling the truth is a revolutionary act.
There is no need at this point to revisit the specific mechanisation, laws and actions by colonial and apartheid regimes which led to these levels of unacceptable inequality. Safe to say that it was necessary, as part of the transition to a new democratic order, to design a Constitution and consequent pieces of legislation which would have an effect of levelling the playing field. We needed to enact affirmative action laws as part of concerted efforts to address the past injustices, laws and policies without which, according to Iheduru and Klasen, we would otherwise be doomed to go into large-scale civil strife (Iheduru, 2004; Klasen, 2002).
The point I turn to is that both its proponents and opponents must always understand B-BBEE within the broader context of transformative Constitutionalism and not as an isolated, technical and depoliticized entity to be managed according to the principles of corporate social responsibility and auditing (Ponte and van Sittert, 2007). This tendency to approach B-BBEE as a tick-box exercise is reductionist and removes this important instrument from the broader transformation agenda to some little hiccup you have to overcome in order to continue extracting profits with less guilt.
The correct location of B-BBEE and affirmative action is within the realm of the South African social contract of transformative constitutionalism. When South Africa transitioned from a minority rule based on parliamentary supremacy, we moved to a Constitutional democracy in which the Constitution was to be the supreme law. The Constitutional Assembly echoed the aspirations of the Congress of the People, that led to the adoption of the Freedom Charter by the ANC when they adopted a model that embraced the supremacy of the Constitution while taking cognisance of the specific conditions of our country with its ever-present legacies of colonialism and apartheid.
The authors of both the 1993 and 1996 Constitution also learnt from other parts of Africa that simply copy- ing and pasting traditional constitutionalism from Europe had resulted in a myriad of well-recorded economic, political and social problems that have arrested Africa’s development to date. There was a recognition that South Africa had experienced what the ANC’s Strategy and Tactics document terms colonisation of a special type (CST), In terms of which, the former colonial powers did not exit the country as it happened in many former colonies. Another recognition was that the majority of South African people, Blacks in general and Africans in particular, have been systematically excluded from meaningful economic, political, social and cultural opportunities of this country.
It was, therefore, necessary to design the type of Constitutional order that both recognised the injustices of the past and envisioned a more social democratic or egalitarian society based on freedom, human dignity and equality. In this way, Transformative constitutionalism goes beyond traditional constitutionalism by articulating a staged process to redress past injustices and intentionally build an equitable society. Fundamental to this idea of transformative constitutionalism is an appreciation that “transformation is a social and economic revolution without which the economic playing fields will not be levelled” (Arendse 2014)
The function of transformative constitutionalism is to dismantle, not only the formal structures of apartheid but further to prescribe to the state to facilitate the Consolidation of substantive equality and attainment of an egalitarian society. In this way, we can say it is both retrospective and futuristic. This need to seek to design the future by understanding the past is also expressed in the Interim Constitution.
“This Constitution provides a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful coexistence and development opportunities for all South Africans, irrespective of colour, race, class, a belief of sex.”( The Interim Constitution ) Already with the adoption of the interim Constitution, South Africa had moved to modern constitutionalism which is not value-neutral, for what is a law without values? even Apartheid was a law.
This new Constitutional democracy necessarily required a commitment to the values of equality, freedom and human dignity. Another important aspect of transformative constitutionalism is the understanding and acknowledgement of power differ entails in society, that inequality permeates all facets of South African life and that mere formal equality will not redress the imbalances. This also means that within the black majority that is marginalised, there exists further fragmentation and inequalities depending on whether you are a woman, disabled or based in the rural areas. In the ANC, we say that women suffer triple oppression: first on the basis of race as black people, second on the basis of class position as poor working class and third on the basis of gender as women.
“While they’re standing in the welfare lines, crying at the doorsteps of those armies of salvation, wasting time in the unemployment lines, sitting around waiting for a promotion.
Poor people gonna rise up and get their share
Poor people gonna rise up and take what’s theirs” – Tracy Chapman
Tracy Chapman’s people need not rise up if afforded substantive and meaningful equality as intended by transformative constitutionalism. The western classical liberal model with its leaning to formal equality is not appropriate for a country as divided and unequal as described by Thabo Mbeki’s Two Nations. Substantive equality goes beyond political and civil liberties, it is about material equality and access to opportunities regardless of your race, gender or creed. It recognises that conditions and systems of inclusion and exclusion pre-existed the right to vote, the freedom of association and the right to practise your cultural beliefs. The effect of these pre-existing exclusionary systems being that of impeding one from fully enjoying the rights now provided. Within this context arose the concept of socio-economic rights- which meant that the constitution was to serve- not only as a mechanism to limit state powers but also imposed positive duties, an obligation on the state to actively transform people’s lives and achieve substantive equality.
Whereas transformative constitutionalism recognises that there has to change, it commits to a process of change rooted in the rule of law. Hence instruments such as the Broad-Based Black Economic Empowerment had to be designed to facilitate that change within the rule of law. Therefore, the B-BBEE Act, liked by some and loathed by others, remains a very important part of South Africa’s journey towards a truly egalitarian society. Commitment to transform our society lies at the heart of the new constitutional order and the constitutional validity of affirmative action measures, and therefore also the B-BBEE programme has been deliberated at length in the Minister of Finance v Van Heerden case.
About the recent matter that was before the Courts brought by Solidarity and Afri-Forum concerning the inclusion of B-BBEE as part of COVID-related funding conditions in the Tourism sector, I propose that any suggestion that a law designed to achieve human dignity, equality and freedom is invalid is both misleading, unscientific and a bad interpretation of the South African Constitution. Such claims lack an honest contextual analysis of our country’s situation and an appreciation of the functions of transformative Constitutionalism.
While I disagree with the reasoning of those who, in addition to undermining the transformation project in their own areas of influence, go on to challenge the government in court for doing its part, I also think this pandemic should not be a missed opportunity for us to drive transformation in earnest. The ANC-led government must effectively make use of the opportunity presented by COVID-19 to accelerate social and economic transformation as mandated by South Africans and as empowered by the Constitution. Government occupies a very important role as a buyer of goods and services and with the correct amount of dedication and political will, this position can be used to drive transformation in key sectors of the economy.
Even as we distribute the Covid-19 vaccine, we should find a model that enables black business participation in the value chain – especially the Small and Medium-sized Enterprises and cooperatives. The tendency to raise questions of capacity when we ask that black business be prioritised must be buried. There is no company anywhere in the world that has the experience of dealing with Covid-related procurement. Whatever criteria will be used must never undermine the project of transformation.
During and beyond this pandemic, the state must effectively use its role as a regulator to again drive transformation and radically change the economy. I strongly feel that this is an area that requires immediate focus. There have to be tangible consequences for non-compliance and disregard of laws and policies meant to restore socio-economic justice. Organisations, sectors and individuals who overtly and creatively undermine the BBBEE requirements must find it more costly to defy than to comply.
While it is true that there have been successes registered in many areas, many of our people remain trapped in a vicious circle of poverty, inequality and unemployment. The democratic dividend has not tricked down to them and only a radical implementation of our transformation laws will open opportunities and restore their dignity. South Africans have given the ANC a mandate to lead and it must lead. However, penalties and regulatory capacity alone will not create a more equal and prosperous society. Of greater influence to this journey is popular buy-in from all sector of society.
Big business has an important role to play too. Firstly, business leaders must acknowledge that it is not morally correct to unashamedly draw massive profits while ignoring the plight of those from whose communities you operate. Secondly, big business needs to appreciate that the problems of South Africa did not begin in 1994. If anything, 1994 presented an opportunity for reconstruction and development. As such, big business should embrace efforts to transform society and be at the forefront of not only applying but promoting the Broad-Based Black Economic Empowerment and Affirmative Action. B-BBEE should not be treated as a mere compliance matter but should be understood within the context of a broader social and economic transformation agenda.
Big business has a moral duty to support the growth and development of the SMMEs even if this is done in the spirit of the much watered-down concept of “shared value”. This must not be a wasted crisis comrades and fellow South Africans. We have an opportunity once again to recommit ourselves to the social compact of transforming the South African society and achieving substantive equality, human dignity and meaningful freedom for all.
“Freedom! Where are you? Cause I need freedom too!” – Kendrick Lamar