Over the past few weeks, an important public debate has unfolded between myself and Christo van der Rheede of the FW de Klerk Foundation over one of the defining constitutional questions of post-apartheid South Africa: does the Constitution require or even allow race-based redress?

At stake is far more than disagreement over employment equity or procurement policy. The debate cuts to the heart of South Africa’s constitutional settlement. Is non-racialism merely an aspirational future destination temporarily suspended while the democratic state continues to classify and treat citizens differently according to race? Or is non-racialism the binding constitutional framework within which all redress must occur?

Van der Rheede’s latest intervention for the FW de Klerk Foundation ultimately collapses under the weight of its own contradictions. For all its talk of “balance”, “harmonisation”, and “constitutional middle ground”, it rests on a fundamental fallacy: the idea that the Constitution somehow recommends or permits race-based redress as a coherent constitutional norm.

It does not.

The problem begins at the most basic practical and legal level. Any state that wishes to discriminate by race, whether rigidly or “moderately”, permanently or temporarily, must first possess the legal ability to classify its citizens by race. Race-based policy without racial classification is impossible. Before one can allocate benefits racially, one must first legally identify the racial beneficiaries. This is not an incidental technicality. It is the very heart of the matter.

The apartheid state could not have functioned racially without the Population Registration Act of 1950 because preferential or discriminatory racial treatment requires a prior statutory mechanism to determine who belongs to which racial category. The entire edifice of racial governance depended upon the state arrogating to itself the power to define the racial identity of citizens.

Immense Political Risk

President FW De Klerk understood this well. That is why one of the greatest legislative acts of his perhaps controversial but certainly courageous presidency was not merely the repeal of many apartheid laws, but the destruction of the classification infrastructure itself. On 17 June 1991, even before the 1992 referendum and at immense political risk, De Klerk succeeded in repealing the Population Registration Act. He declared: “In the sphere of ending discrimination, not only have the Group Areas Act, the constitutional laws, and the Population Registration Act now been repealed, but also the Separate Amenities Act. Statutory racial discrimination has thereby been honestly and completely removed, and claims to the contrary have no substance.”

De Klerk correctly understood that once the state lost the legal machinery to classify by race, statutory racial discrimination itself became impossible. That was the entire point. The repeal of the Population Registration Act was not merely symbolic, but in real terms represented the deliberate dismantling of the state’s racial operating system.

Yet today, five years after De Klerk’s death and thirty-five years after this historic statutory achievement, the Foundation bearing his name now argues that South Africa may and perhaps should continue to operate race-based law and policy.

Van der Rheede’s argument, whether he is willing to admit it or not, requires the resurrection, whether explicit or implicit, of the very racial classification machinery President De Klerk abolished. This point bears repeating: there can be no state racial discrimination without state racial classification.

The irony becomes quite astonishing when Van der Rheede characterises opposition to racial classification as somehow “extreme” or “right-wing”, as he recently did when we debated this issue on television. If seeking the total eradication of state racial classification is right-wing and extremist, then FW de Klerk himself was apparently a right-wing extremist according to the logic now advanced by the chair of his own Foundation.

In his historic parliamentary speech thirty-five years ago, De Klerk warned precisely against this kind of intellectually incoherent and morally compromised halfway politics: “Clinging to unworkable policy directions, which often — precisely because they are unworkable — are also indefensible in principle, is short-sighted.”

Modern Race Policy

That warning applies powerfully to modern race policy. South Africa’s present framework, supported by Van der Rheede at least on the principle of allowing some measure of race-based law and policy, attempts to maintain a supposedly non-racial constitutional order while simultaneously requiring the state to classify citizens racially in procurement, employment, ownership, admissions, licensing, and administration. The contradiction is obvious. One cannot simultaneously abolish racial government and preserve racial governance mechanisms.

Even more fundamentally, Van der Rheede perpetuates a dangerous misreading of the text of the Constitution itself.

His argument relies heavily on section 9(2), which permits measures designed to advance persons disadvantaged by unfair discrimination. He treats this provision as though it constitutionally obligates race-based redress. He cautions against allowing section 1’s non-racialism to exercise a “veto” over section 9. But this betrays a dangerous misunderstanding of constitutional interpretation.

Section 1 is not merely another constitutional provision among equals. It is the constitutional foundation from which the entire constitutional order derives its legitimacy and normative structure. South Africa is founded on the values listed in section 1, expressly including in no uncertain terms, non-racialism. The superiority of section 1 is structurally entrenched. Amendments to section 1 require a 75% parliamentary majority, whereas amendments to section 9 require only two-thirds. Furthermore, section 9 itself is subject to section 36, the limitation clause, which itself ultimately harkens back to the foundational values of section 1.

There can therefore never be a genuine “veto” scenario between sections 1 and 9 because section 1 already defines the constitutional framework within which section 9 operates. Van der Rheede perhaps unwittingly reverses the constitutional hierarchy. The correct interpretive question is not whether section 1 may override section 9. It is whether section 9 may be interpreted in a manner inconsistent with section 1’s founding commitment to non-racialism. The answer is, from the constitutional text, an emphatic no. Only some perverse legal bait-and-switch can hope to convince South Africans that the “non-racialism” of section 1(b) somehow doesn’t actually mean non-racialism.

This becomes even more striking when one considers the text of section 9(2). The word “race” does not appear at all. The provision permits measures to advance “persons, or categories of persons, disadvantaged by unfair discrimination”. Van der Rheede simply assumes that this must mean racial discrimination by the democratic state. But that assumption is inelegantly forced into the text. It is not found within it.

A constitutionally coherent reading harmonises sections 1 and 9 by recognising that redress is indeed constitutionally mandated, but that such redress must occur within a non-racial constitutional framework. In other words: historic disadvantage must be remedied, but the state may not, if it wants to hold true to the Constitution, reconstitute itself around racial classification and racial preference. This interpretation is not only more textually coherent, but morally and practically superior.

Actual deprivation

A non-racial redress framework would target actual deprivation directly, as the organisation I work for, the Institute of Race Relations (IRR), has argued for many years: poverty, weak schools, unemployment, lack of assets, municipal collapse, disability, orphanhood, territorial deprivation, and household income. Such measures would overwhelmingly benefit black South Africans because apartheid’s legacy and post-apartheid failure have left disadvantage overwhelmingly concentrated among black South Africans. But crucially, assistance would flow because of actual disadvantage rather than racial categorisation by the state. That is genuine constitutional harmonisation and truly constructive transformational redress.

Van der Rheede is entirely correct that South Africa cannot simply forget history. He is entirely correct that redress is constitutionally compulsory. But he catastrophically errs in believing that redress requires racial discrimination by the state.

FW de Klerk understood this far more clearly than his Foundation now does. He understood that equal human dignity required the destruction of the state’s racial machinery itself. As he told Parliament in 1991: “That which is dear to you can only be protected if there is full recognition of the human dignity and the fundamental rights of all South Africans, regardless of race or colour.”

That is the constitutional settlement South Africa was supposed to build. Sadly, following in the train of three decades of race-based constitutional vandalism, Van der Rheede’s argument ultimately seeks to preserve the logic of racial classification while merely softening its edges. But once the state has the authority to classify citizens racially for supposedly benevolent purposes, it has already abandoned the constitutional value of non-racialism.

President de Klerk understood that the abolition of racial classification itself was the indispensable precondition for a truly equal constitutional order. It is therefore profoundly tragic that the FW de Klerk Foundation now defends the continued legitimacy of any race-based governance.

De Klerk’s greatest historical achievement was not simply that he facilitated South Africa’s democratic transition, as many worthy leaders have negotiated transitions. What makes De Klerk historically exceptional, even perhaps more so than his presidential successor, was that he became the single greatest dismantler of statutory racial classification and therefore of racial discrimination in modern history. He did not merely soften apartheid, nor did he seek to merely moderate racialism. With tremendous courage, he dismantled the legal machinery that made racial government possible.

That is the legacy his Foundation ought to defend. Instead, its chair now asks us to accept that the democratic state may continue doing precisely what De Klerk sought to end: the classification of citizens racially in order to distribute even a modicum of rights, opportunities, contracts, appointments, and benefits differently according to race. This is nothing less than a tragic betrayal of a truly historic political legacy.

Hermann Pretorius is head of strategic communications at the IRR and author of Rule Breakers: How the 2024 Election Campaign Changed South Africa Forever (Protea, 2025).