President Ramaphosa’s Misinterpretation of South Africa’s Constitutional Mandate on Race and Economic Policy

At the ANC Limpopo elective conference, President Cyril Ramaphosa asserted that calls to abolish Black Economic Empowerment (BEE) and affirmative action are unrealistic, emphasizing that these policies are “a direct requirement of the South African constitution.” However, this statement reflects a persistent misreading of the nation’s supreme legal document.

Constitutional Foundations: Nonracialism as a Core Value

South Africa’s painful history with state-imposed racial engineering makes it unsurprising that the Constitution explicitly forbids race-based economic manipulation akin to BEE. Section 1(b) of the Constitution clearly establishes nonracialism as a foundational value, a principle that cannot be overridden or diluted by other provisions. Instead, all constitutional clauses must be interpreted in a way that upholds and promotes this core ideal.

The Controversy Surrounding Section 9(2): Equality and Advancement

Ramaphosa and some legal professionals, including certain Constitutional Court justices, have long attempted to construe Section 9(2) as a constitutional endorsement of racial engineering. This section states that equality encompasses “the full and equal enjoyment of all rights and freedoms,” which may be advanced through “legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination.” Notably, the text does not specify race or ethnicity.

In contrast, other parts of the Constitution explicitly mention race, such as the requirement for the judiciary to reflect the racial composition of South African society-a narrowly tailored exception to nonracialism. Without such explicit language in Section 9(2), this clause must be interpreted in harmony with the founding value of nonracialism.

Socioeconomic Disadvantage, Not Race, as the Basis for Advancement

The term “disadvantaged” in Section 9(2) should be understood in socioeconomic terms-poverty, limited education, and restricted opportunities-rather than as a coded reference to racial identity. This interpretation aligns with South Africa’s demographics, where the majority of the economically marginalized are black South Africans. Policies genuinely aimed at empowerment would naturally benefit this group without resorting to racial categorization.

Public Procurement and the Limits of Race-Based Preferences

Section 217 of the Constitution, which governs public procurement, similarly emphasizes advancing the disadvantaged rather than racial groups. The principles of fairness, equity, transparency, competitiveness, and cost-effectiveness remain paramount. Race-based procurement preferences often inflate costs, distort markets, and entrench patronage networks, undermining these constitutional imperatives.

The Economic Toll of BEE: Insights from Recent Research

A groundbreaking 2025 study by the Free Market Foundation and Solidarity Research Institute quantified the economic damage caused by “broad-based” BEE policies. The research estimates direct compliance costs between R145 billion and R290 billion annually-equivalent to 2% to 4% of South Africa’s GDP. Ownership and enterprise development alone account for tens of billions of rand. When factoring in indirect effects such as reduced investment, slower economic growth, and lost job opportunities, BEE has suppressed GDP growth by 1.5% to 3% per year and eliminated up to 192,000 jobs annually. Over time, this economic drag has exceeded R5 trillion.

These figures represent tangible losses: businesses that never launched, jobs that were never created, and poverty that remains unaddressed. Yet, the ANC leadership and others persist in defending race-based economic policies, as highlighted by the South African Institute of Race Relations’ Index of Race Law. The motivation is less about constitutional fidelity and more about political economy.

Political Economy: Race-Based Policies as Tools of Patronage

BEE and similar race-focused policies serve as mechanisms for patronage, rent-seeking, and resource extraction from the productive economy under the guise of “transformation.” They enable the ruling party to manipulate economic levers, reward loyal insiders, and maintain a power network that sustains political dominance.

Transitioning to nonracial, merit-based policies that expand opportunities through employment, deregulation, and economic growth would dismantle this extractive system. Such genuine empowerment threatens the political architecture that the ANC has built over decades.

Constitutional Fidelity Demands Nonracialism

Despite being regarded as a “constitutional scholar,” Ramaphosa’s interpretation conflicts with the Constitution’s text, structure, and founding values, which unequivocally prioritize nonracialism. Sections 9(2) and 217 allow for targeted support to those genuinely disadvantaged by discrimination, but this support must not perpetuate racial classification or discrimination in law and policy.

Given South Africa’s history, interpreting these provisions to justify ongoing race-based policies constitutes a serious constitutional misstep, regardless of one’s official title or position.

Building a United, Prosperous South Africa Beyond Race-Based Policies

Three decades into democracy, South Africa cannot afford to treat nonracialism as a mere slogan. It remains the essential, though fragile, foundation of the constitutional order. Policies that divide citizens by race, increase costs, deter investment, and concentrate benefits among politically connected elites are a major factor in persistent poverty.

The “dream” that must be abandoned is not the vision of inclusive prosperity but the ANC’s claim that race-based economic extraction is constitutionally mandated. True adherence to the Constitution requires nonracial public policies that reward merit and foster economic growth, expanding the overall wealth rather than competing over shrinking shares.

Only through such an approach can South Africa realize the united, nonracial society envisioned by its Constitution.

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