READ: RP's Non-racialism Bill

INVITATION TO COMMENT: Twenty-First* Constitutional Amendment Bill (Non-racialism Bill)

(* Constitutional amendment bills run sequentially, and this number is will be finalised when it is tabled)

Background to the Bill

The Referendum Party (RP) invites your input on a proposed constitutional amendment which would end race-based policy in South Africa.

The constitution already explicitly prohibits unfair discrimination on the basis of race, but section 9 (2) has come to be read as to permit racial discrimination against categories of persons in order to advance equality.

The proposed legislation will establish a fairer and more just framework through which to advance equality, whilst bringing an end to the use of race to make blanket decisions about individuals.

The legislation does this by establishing two important principles which should self-evidently be just:

• that we are all unique individuals and are therefore entitled to have our specific circumstances taken into account, and
• that actions taken to advance persons previously disadvantaged by unfair discrimination cannot create unfair discrimination against someone else.

You are invited to submit your comments on the bill by email to info@referendumparty.org or via the Referendum Party website at https://www.referendumparty.org/campaigns/end-race-based-policy.

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Draft legislation - Text of the Bill

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CONSTITUTION TWENTY-FIRST AMENDMENT BILL‍

GENERAL EXPLANATORY NOTE: Words underlined with a solid line indicate insertions in existing enactments. Words [enclosed in square brackets and struck through] indicate sections deleted from the existing enactments.‍

BILL‍

To amend the Constitution of the Republic of South Africa, 1996, so as to prohibit racial discrimination being enacted against groups or categories of persons.

PREAMBLE

WHEREAS non-racialism is a founding principle of the Constitution of the Republic of South Africa;

AND WHEREAS it is inherently unjust to take measures to advance or disadvantage any individual, without taking into account their specific circumstances, simply because they belong to a category of persons or racial group;

AND WHEREAS the provisions of section 9 of the Constitution have come to be read to permit the South African state to enact racial discrimination against entire racial groups and categories of persons;

AND WHEREAS this is incompatible with the principle of non-racialism, and this amendment will ensure that South Africa remains true to the founding value of non-racialism.

AND WHEREAS the state will still retain the ability to advance persons disadvantaged by unfair discrimination, but, by prohibiting the state from applying sanctions collectively and consequently requiring it to consider the circumstances of each individual, South Africa will become a fairer and more just society.

BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows:-

Amendment of section 9 of the Constitution

1. Section 9 of the Constitution of the Republic of South Africa, 1996, is hereby amended-

a. by the substitution of subsection (1) with the following paragraph:

“(1) Everyone is equal before the law and has the right to equal protection and benefit of the law. The state must exercise its power with respect for the equal worth of all and the liberty and dignity of the individual.”

b. by the substitution of subsection (2) with the following paragraph:

“(2) Equality includes the full and equal enjoyment of all rights and freedoms. [To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.]”

c. by the substitution of subsection (5) with the following paragraph:

“(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair. No discrimination by the state may be established to be fair unless it has met the requirements prescribed by section 36 of the Constitution.”

d. by the insertion after subsection (5) of the following subsections:

“(6) Discrimination may not be established to be fair when it is directed at a category of persons. Where the state seeks to engage in fair discrimination or to disadvantage an individual or individuals, the state's actions must take into account the specific circumstances of each individual who will be impacted.”

“(7) To promote the achievement of equality, legislative and other measures designed to remedy the effects of unfair discrimination upon a person or persons may be taken. Any such measures must take the circumstances of each individual impacted into account, and may not in remedying the effects of unfair discrimination against one individual unfairly discriminate against or disadvantage another.”

Amendment of section 174 of the Constitution

2. Section 174 of the Constitution of the Republic of South Africa, 1996, is hereby amended-

a. by the substitution of subsection (2) with the following paragraph:

“(2) The need for the judiciary to be broadly reflective of the South African people as a whole [reflect broadly the racial and gender composition of South Africa] must be considered when judicial officers are appointed.’’

Amendment of section 193 of the Constitution

3. Section 193 of the Constitution of the Republic of South Africa, 1996, is hereby amended-

a. by the substitution of subsection (2) with the following paragraph:

“(2) The need for a Commission established by this Chapter to be broadly reflective of the South African people as a whole [reflect broadly the race and gender composition of South Africa] must be considered when members are appointed.’’

Amendment of section 195 of the Constitution

4. Section 195 of the Constitution of the Republic of South Africa, 1996, is hereby amended-

a. by the substitution of subsection (2)(I) with the following paragraph:

“(I) Public administration must be broadly representative of the South African people as a whole, with employment and personnel management practices based on ability, objectivity, and fairness. [and the need to redress the imbalances of the past to achieve broad representation.]’’

Amendment of section 217 of the Constitution

5. Section 217 of the Constitution of the Republic of South Africa, 1996, is hereby amended-

a. by the substitution of subsection (1) with the following paragraph:

“[(1)] When an organ of state in the national, provincial or local sphere of government, or any other institution identified in national legislation, contracts for goods or services, it must do so in accordance with a system which is fair, equitable, transparent, competitive and cost-effective.’’

b. by the deletion of subsection (2)

“[(2) Subsection (1) does not prevent the organs of state or institutions referred to in that subsection from implementing a procurement policy providing for—

(a) categories of preference in the allocation of contracts; and

(b) the protection or advancement of persons, or categories of persons, disadvantaged by unfair discrimination.]”

c. by the deletion of subsection (3)

‘’[(3) National legislation must prescribe a framework within which the policy referred to in subsection (2) must be implemented.]” .

Short title and commencement

6. This Act is called the Constitution Twenty-First Amendment Act, 2025 and comes into effect on a date determined by the President by proclamation in the Gazette.

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How Section 9 will read after the amendment

After the legislation has been enacted, section 9 of the Constitution would then read as follows:

9. Equality

(1) Everyone is equal before the law and has the right to equal protection and benefit of the law. The state must exercise its power with respect for the equal worth of all and the liberty and dignity of the individual.

(2) Equality includes the full and equal enjoyment of all rights and freedoms.

(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair. No discrimination by the state may be established to be fair unless it has met the requirements prescribed by section 36 of the Constitution.

(6) Discrimination may not be established to be fair when it is directed at a category of persons. Where the state seeks to engage in fair discrimination or to disadvantage an individual or individuals, the state's actions must take into account the specific circumstances of each individual who will be impacted.

(7) To promote the achievement of equality, legislative and other measures designed to remedy the effects of unfair discrimination upon a person or persons may be taken. Any such measures must take the circumstances of each individual impacted into account, and may not in remedying the effects of unfair discrimination against one individual unfairly discriminate against or disadvantage another.”

A copy of the Bill can be downloaded here

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