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Assessing and promoting civil and minority rights in South Africa.

[Source: Politicsweb by John Kane Berman.]

South Africa’s ruling party, the African National Congress (ANC), has long been committed to the implementation of a “national democratic revolution” (NDR). It also speaks from time to time about the need to implement “radical economic transformation”. In September 2012 the ANC government (as well as all opposition parties in Parliament) endorsed a National Development Plan (NDP) among whose provisions was that the law should be “interpreted and enforced in a progressive, transformative fashion” in order for it to be “an agent of change”.

The Constitution itself contains no such provisions, although its equality clause licenses the adoption of what may loosely be described as “affirmative action” policies. So also, the property clause in the Constitution allows for expropriation of private property to promote “land reform”. Early in 2018 Parliament set up a committee to investigate what, if any, amendments to the Constitution were necessary to empower the state to expropriate land without compensation. Both affirmative action and expropriation without compensation would fall within the programme of radical transformation.

The aim of this paper is to assess to what extent some of the judgments of the Constitutional Court are in line with this programme. One such judgment is that in the AgriSA case in 2013, in which the court held that the assumption of “custodianship” over private property by the state did not amount to expropriation and therefore did not require compensation. The second, in the Barnard case in 2014, held that it was both lawful and fair to leave a senior vacancy in the police force empty rather than appoint a white woman to it. The third judgment, in 2016, held that the application of racial targeting in the Department of Correctional Services was lawful provided it used the appropriate demographic profile.

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South Africa at a Glance
57 700 000 (mid 2018 estimate)
5.1% y/y in October 2018 (CPI) & +6.9 y/y in October 2018 (PPI)
2.2% q/q (3rd quarter of 2018)
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