Authored By: Emmanuel Hlatletsi
University Of South Africa (UNISA)
I. Introduction
In 1932, the Carnegie Commission of Investigation into the Poor White Problem proposed something remarkably ambitious: a tightly coordinated national scheme of job reservation, agricultural subsidies, and state-backed employment specifically tailored for impoverished Afrikaners, lifting a deeply marginalised community out of rural destitution and anchoring them firmly in the middle class within less than a generation.1 Sixty-four years later, South Africa’s 1996 Constitution set out to deliver a comparable transformation for the country’s Black majority.2 It entrenched fundamental human rights to housing, healthcare, food, water, social security, and education, while giving the state explicit authority to adopt race-conscious measures to unravel the bitter economic legacy of apartheid.3
Yet, unlike Carnegie’s unconstrained project, this modern constitutional promise had to be built within a democratic order bounded by judicially enforceable rights, strict fiscal limits, and administrative review.4
This article argues that South Africa’s socio-economic rights framework—strengthened by black economic empowerment (BEE) legislation—has achieved genuine, life-changing progress, but remains inherently incomplete.5 It has not yet replicated the generational shift achieved by Carnegie, largely because reasonableness review and court-monitored redress naturally move with far greater caution and restraint than an authoritarian, unconstrained state ever did.6
Part II sets out the constitutional and statutory framework.7 Part III analyses the cornerstone case law, including pivotal decisions on affirmative action and public procurement.8 Part IV offers a critical evaluation of where the framework succeeds and where it falters, focusing closely on BEE.9 Part V draws a comparative lens on Malaysia’s experience, and Part VI concludes with actionable proposals for reform.10
II. Legal Framework and Constitutional Foundations
Sections 26 to 29 of the Constitution form the bedrock of South Africa’s social safety net, guaranteeing access to housing, healthcare, food, water, social security, and education.11 With the notable exception of basic education—which is an absolute, unqualified right—these protections are bound by the principle of progressive realisation within available resources.12 In practice, this means court supervision focuses on whether government programmes are constitutional and reasonable, rather than demanding instant, perfect outcomes overnight.13 Alongside these rights, Section 25 empowers the state to carry out land reform to undo the historical injustice of land dispossession.14
These social protections work side by side with Section 9(2).15 This provision allows the state to adopt legislative and policy measures designed to advance individuals and communities who have suffered from unfair discrimination, providing the ultimate constitutional anchor for affirmative action.16
Two major statutes put Section 9(2) into practice within the economic sphere.17 The Employment Equity Act 55 of 1998 requires designated employers to implement affirmative action plans that ensure fair and equitable representation across all workplace tiers.18 The Broad-Based Black Economic Empowerment Act 53 of 2003 (B-BBEE Act) establishes a comprehensive national framework of codes of good practice that rates businesses across ownership, management, skills development, and procurement, aiming to drive active Black participation in the economy.19
Together, these provisions create a thoughtful dual-track model: direct delivery of essential basic services on one track, and structured, race-conscious transformation of market ownership and employment on the other.20
III. Judicial Interpretation: Socio-Economic Rights and Affirmative Action
These provisions have been given practical content largely by the Constitutional Court. From its earliest decisions, the Court established that the reasonableness standard was far more than a rubber stamp; it was a real, binding constraint on state action.21 In Grootboom, the Court ruled that a national housing scheme could not be deemed reasonable if it completely ignored people living in immediate, desperate crisis, no matter how impressive its long-term statistics looked.22 Soon after, in Treatment Action Campaign (No 2), the Court took a bolder step, directing the government to lift arbitrary restrictions on life-saving antiretroviral drugs for pregnant mothers (to prevent mother-to-child transmission of HIV) and present a clear plan for implementation.23 This confirmed that socio-economic rights are tangible, enforceable guarantees rather than mere political ideals.24 Later, in Khosa, the Court widened this protection by ruling that excluding permanent residents from social grants was unreasonable and unconstitutional, highlighting how closely socio-economic rights and human dignity are intertwined.25
The jurisprudence surrounding affirmative action has developed along a complementary path.26 In Van Heerden, the Court set out a three-part test for restitutionary measures under Section 9(2): the measure must target people disadvantaged by unfair discrimination, be designed to advance them, and actively promote equality.27 If a policy meets these criteria, it does not constitute unfair discrimination.28
The Court applied this reasoning to the workplace in Barnard, upholding a decision not to promote a candidate because doing so would conflict with a workplace equity plan.29 However, the Court issued a gentle warning that affirmative action policies must always remain rational and proportionate.30
More recently, in Afribusiness, the Constitutional Court struck down the 2017 Preferential Procurement Regulations—which made empowerment scoring mandatory in public tenders—finding that the Minister of Finance had overstepped statutory powers.31 Crucially, the Court did not condemn empowerment-focused procurement itself; rather, it reminded the nation that even noble, constitutionally sanctioned goals must follow lawful, procedural paths.32
IV. Critical Evaluation of Socio-Economic Redress and B-BBEE
There is no denying that South Africa’s constitutional rights framework has dramatically reshaped millions of lives for the better.33 Social grants now reach deep into vulnerable communities, the public antiretroviral programme—born out of courageous litigation—grew into one of the largest on earth, and no-fee schools have thrown open classroom doors for generations of children.34
Yet, deep structural shortfalls endure.35 Land reform moves at an agonising pace: by 2024, only about eleven per cent of commercial farmland had been transferred against a government target of twenty-five per cent.36 South Africa also remains one of the most unequal societies on earth, where race remains a stubborn predictor of income and opportunity.37 Legal scholars often criticise the reasonableness standard itself, arguing that it allows the state to pass administrative check-boxes without actually altering the lived reality of impoverished citizens.38
BEE sits at the very heart of this debate.39 On one hand, its moral and legal grounding is undeniable: formal equality alone cannot heal an economy where capital and executive power remained overwhelmingly concentrated in a few hands after 1994.40 Decisions like Van Heerden and Barnard affirm that race-conscious redress is a legitimate, constitutionally endorsed tool.41 The legislation was genuinely designed to reshape ownership, corporate leadership, and supply chains.42
On the other hand, real-world execution has frequently faltered.43 Empirical research shows that fronting—superficial compliance designed to give the illusion of transformation—remains widespread.44 Critics also rightly point out that the wealth generated by large empowerment deals has often concentrated among a small, politically connected elite, leaving ordinary citizens on the sidelines.45
Furthermore, cases like Afribusiness demonstrate how statutory missteps can stall the state’s own transformation agenda.46 Ultimately, BEE is best understood not as a flawed principle, but as a deeply necessary initiative whose execution has struggled under the weight of administrative friction and institutional weaknesses.47
V. Comparative Perspective: Malaysia’s New Economic Policy
Looking beyond South Africa’s borders, Malaysia’s New Economic Policy (NEP)—launched in 1970 to empower the economically disadvantaged Bumiputera majority—offers an illuminating parallel.48 Both nations sought to rebalance wealth and employment in favour of a historically marginalised majority population.49
However, their structural approaches differed: Malaysia relied heavily on broad executive discretion and state-enforced quotas, whereas South Africa established a structured, statutory scoring model built on constitutional principles.50 While Malaysia’s policy coincided with rapid economic expansion and a notable reduction in poverty over its first two decades, scholars note that it also led to elite capture and long-term reliance on state patronage.51 This comparison reveals a vital lesson: whether in Kuala Lumpur or Johannesburg, the design of a redress scheme matters far less than the strength of the broader economy, the integrity of state institutions, and strict oversight against self-enrichment.52
VI. Conclusion
South Africa’s Constitution has successfully laid a compassionate baseline of rights beneath millions of lives, and its empowerment statutes have begun dismantling the structural monopolies inherited from apartheid.53 Yet, it has not yet built the soaring ceiling of opportunity that the Carnegie Commission created for poor Afrikaners nearly a century ago.54 That difference is not merely a lack of political will—it is a structural reality: Carnegie operated through an authoritarian state unburdened by human rights, judicial oversight, or budget trade-offs; modern South Africa must advance transformation through legal due process, reasonableness review, and constitutional checks.55
To bridge this divide and fulfil the promise of 1996, three practical reforms are needed:56
- Binding Statutory Timelines for Land Reform: Parliament must replace aspirational targets with realistic, enforceable statutory deadlines.57
- Outcome-Based Judicial Review: Courts and statutory bodies should supplement administrative reasonableness tests with tangible material metrics, ensuring procedural compliance leads to actual delivery.58
- Rigorous Enforcement Against Fronting: The state must crack down aggressively on fronting and tokenism, drawing on lessons from Malaysia to ensure BEE benefits broad communities rather than a privileged few.59
Without these deliberate steps, the nation’s legal guarantees risk staying locked on paper—measured in policy documents rather than in the lived daily dignity of ordinary South Africans.60
Footnote(S):
1 JFW Grosskopf and others, The Poor White Problem in South Africa: Report of the Carnegie Commission (Pro Ecclesia 1932).
2 Constitution of the Republic of South Africa, 1996.
3 ibid ss 9(2), 25–29.
4 Iain Currie and Johan de Waal, The Bill of Rights Handbook (6th edn, Juta 2013).
5 David Bilchitz, Poverty and Fundamental Rights: The Justification and Enforcement of Socio-Economic Rights (Oxford University Press 2007).
6 Grosskopf (n 1).
7 Constitution of the Republic of South Africa, 1996.
8 Minister of Finance v Afribusiness NPC [2022] ZACC 4, 2023 (3) BCLR 257 (CC).
9 Broad-Based Black Economic Empowerment Act 53 of 2003.
10 Lee Hwok-Aun, Affirmative Action in Malaysia and South Africa: Preference for Parity (Routledge 2021).
11 Constitution of the Republic of South Africa, 1996, ss 26–29.
12 ibid s 29(1)(a).
13 Bilchitz (n 5).
14 Constitution of the Republic of South Africa, 1996, s 25.
15 ibid s 9(2).
16 Currie and de Waal (n 4).
17 Employment Equity Act 55 of 1998; Broad-Based Black Economic Empowerment Act 53 of 2003.
18 Employment Equity Act 55 of 1998, s 15.
19 Broad-Based Black Economic Empowerment Act 53 of 2003, s 2.
20 Bilchitz (n 5).
21 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC).
22 ibid para 44.
23 Minister of Health v Treatment Action Campaign (No 2) 2002 (5) SA 721 (CC).
24 ibid para 135.
25 Khosa v Minister of Social Development; Mahlaule v Minister of Social Development 2004 (6) SA 505 (CC).
26 Minister of Finance v Van Heerden 2004 (6) SA 121 (CC).
27 ibid para 37.
28 ibid.
29 South African Police Service v Solidarity obo Barnard 2014 (6) SA 123 (CC).
30 ibid para 36.
31 Minister of Finance v Afribusiness NPC [2022] ZACC 4, 2023 (3) BCLR 257 (CC).
32 ibid.
33 World Bank, Inequality in Southern Africa: An Assessment of the Southern African Customs Union (World Bank 2022).
34 Treatment Action Campaign (No 2) (n 23).
35 World Bank (n 33).
36 Department of Agriculture, Land Reform and Rural Development, oral reply to Parliament (August 2024), cited in Cherryl Walker, ‘Land ownership in South Africa – the facts and figures, and figuring out the facts’ Daily Maverick (10 March 2025) <https://www.dailymaverick.co.za/article/2025-03-10-land-ownership-in-sa-the-facts-and-figures/> accessed 6 September 2026; Wandile Sihlobo and Johann Kirsten, ‘This is how President Ramaphosa got to the 25% figure of progress in land reform in South Africa’ The Conversation (22 July 2025) <https://theconversation.com/this-is-how-president-ramaphosa-got-to-the-25-figure-of-progress-in-land-reform-in-south-africa-226135> accessed 6 September 2026.
37 World Bank (n 33).
38 Jackie Dugard, ‘Courts and the Poor in South Africa: A Critique of Systemic Judicial Failures to Advance Transformative Justice’ (2008) 24 South African Journal on Human Rights.
39 Broad-Based Black Economic Empowerment Act 53 of 2003.
40 Van Heerden (n 26).
41 Barnard (n 29).
42 Broad-Based Black Economic Empowerment Act 53 of 2003, s 2.
43 Jeannine Van de Rheede, ‘The Broad-Based Black Economic Empowerment Act 53 of 2003 and the Ways in which the Commission of Fronting Practices Affects the Achievement of its Objective’ (2020) 7(1) African Journal of Democracy and Governance 101.
44 ibid 105.
45 Gerbrandt van Heerden, ‘Affirmative Action Failures: Malaysia’s Warning for South Africa’ Daily Friend (18 April 2023) <https://dailyfriend.co.za/?p=40214> accessed 6 September 2026.
46 Afribusiness (n 31).
47 Van de Rheede (n 43).
48 Lee (n 10).
49 ibid.
50 van Heerden (n 45).
51 Lee (n 10).
52 ibid.
53 Currie and de Waal (n 4).
54 Grosskopf (n 1).
55 Bilchitz (n 5).
56 ibid.
57 Sihlobo and Kirsten (n 36).
58 Dugard (n 38).
59 Van de Rheede (n 43); Lee (n 10).
60 Bilchitz (n 5).
Bibliography
Table of Cases
Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC)
Khosa v Minister of Social Development; Mahlaule v Minister of Social Development 2004 (6) SA 505 (CC)
Minister of Finance v Afribusiness NPC [2022] ZACC 4, 2023 (3) BCLR 257 (CC)
Minister of Finance v Van Heerden 2004 (6) SA 121 (CC)
Minister of Health v Treatment Action Campaign (No 2) 2002 (5) SA 721 (CC)
South African Police Service v Solidarity obo Barnard 2014 (6) SA 123 (CC)
Table of Legislation
Broad-Based Black Economic Empowerment Act 53 of 2003
Constitution of the Republic of South Africa, 1996
Employment Equity Act 55 of 1998
Preferential Procurement Policy Framework Act 5 of 2000
Secondary Sources
Bilchitz David, Poverty and Fundamental Rights: The Justification and Enforcement of Socio-Economic Rights (Oxford University Press 2007)
Currie Iain and de Waal Johan, The Bill of Rights Handbook (6th edn, Juta 2013)
Department of Agriculture, Land Reform and Rural Development, oral reply to Parliament (August 2024), cited in Cherryl Walker, ‘Land ownership in South Africa – the facts and figures, and figuring out the facts’ Daily Maverick (10 March 2025) <https://www.dailymaverick.co.za/article/2025-03-10-land-ownership-in-sa-the-facts-and-figures/> accessed 6 September 2026
Dugard Jackie, ‘Courts and the Poor in South Africa: A Critique of Systemic Judicial Failures to Advance Transformative Justice’ (2008) 24 South African Journal on Human Rights
Grosskopf JFW and others, The Poor White Problem in South Africa: Report of the Carnegie Commission (Pro Ecclesia 1932)
Lee Hwok-Aun, Affirmative Action in Malaysia and South Africa: Preference for Parity (Routledge 2021)
Sihlobo Wandile and Kirsten Johann, ‘This is how President Ramaphosa got to the 25% figure of progress in land reform in South Africa’ The Conversation (22 July 2025) <https://theconversation.com/this-is-how-president-ramaphosa-got-to-the-25-figure-of-progress-in-land-reform-in-south-africa-226135> accessed 6 September 2026
Van de Rheede Jeannine, ‘The Broad-Based Black Economic Empowerment Act 53 of 2003 and the Ways in which the Commission of Fronting Practices Affects the Achievement of its Objective’ (2020) 7(1) African Journal of Democracy and Governance 101
van Heerden Gerbrandt, ‘Affirmative Action Failures: Malaysia’s Warning for South Africa’ Daily Friend (18 April 2023) <https://dailyfriend.co.za/?p=40214> accessed 6 September 2026
World Bank, Inequality in Southern Africa: An Assessment of the Southern African Customs Union (World Bank 2022)
