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An Examination of the Effectiveness of Race-Based Distributive 
Justice in South Africa 

 

 

 

 

Rajitha Rajaram 

2411798 

 

 
 

Supervisor: Prof. Edwin Etieyibo 

 

 

 

 

Research report submitted to the Faculty of Humanities, University of the 

Witwatersrand, Johannesburg, in partial fulfilment of the requirements for the degree 

of Master of Arts, Applied Ethics for Professionals 

 

 

November 2022 

  



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DECLARATION 

I declare that this research report is my own, unaided work. It is submitted towards 

completion of the degree of Master of Arts, Applied Ethics for Professionals, at the 

University of the Witwatersrand, Johannesburg. The work has not been submitted 

before for any other degree or examination at any other university or learning 

institution. 

 
 

 

 

 

 

Rajitha Rajaram 

Date: 8 November 2022 
 

 

  



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Table of Contents 

 

Research Synopsis 

Section 1: Preamble 

 Introduction  

 Historical landscape of South Africa 

Section 2: Why do this Research?  

 Research question 

 Importance of the question 

Section 3: Philosophical Foundation for Historical Injustice of Apartheid 

Section 4: Rationale and Arguments for Race-Based Policies 

Rationale or political argument for race-based policies 

Philosophical or moral argument for race-based policies 

Section 5: Interrogation of the Applicable Race-Based Legislation 

Broad-based Black Economic Empowerment Act – Affirmative Action  

Exploration of the code 

Implementation and Impact of Affirmative Action  

Section 6: Exploration of alternative approach – Class-Based Distributive 
Justice and the Whole-of-society approach (SDG model) 

Alternative approach: Class-based distributive justice 

Section 7: Objections and Responses 

 Objection and response  

Section 8: Conclusion 

 

  



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RESEARCH SYNOPSIS 

In this research project, I argue that the adoption of race-based distributive justice in 

South Africa (SA) has not benefited the groups that are targeted in the policy. To 

achieve this, I set the scene with the historical landscape of SA, as a precursor to 

understanding and appreciating the context. In adopting race-based justice, SA 

created an alternative mechanism to maintain a hold over individuals and has not 

created a fair environment that adequately supports just distribution or restorative 

justice. The patterns by which distributions are designed and implemented have 

created dependencies that prevent individuals from emancipating themselves 

sufficiently to live autonomous lives. I intend to assert that the quality of distributions 

is poor and contribute to restricting previously disadvantaged individuals from fully 

exploring their own potential in attaining economic emancipation and becoming fruitful 

contributors to society as a whole. This cycle of oppression also has a negative impact 

on the dignity and self-worth of previously disadvantaged groups.  

Redistribution is intended to compensate or restore that which people have lost, in this 

instance, due to the apartheid legislation and historical suffering. Robert Nozick’s 

entitlement theory focuses on historical injustice and is an appropriate setting for the 

exploration of this research. The three principles of the entitlement theory guide the 

need and the nature of the appropriate compensation.  

I further purport that the alternative approach of class-based distributive justice is more 

focused and has a wider reach in the audience it intends to target than race-based 

distributions. The class-based approach has a greater impact on the lives of citizens 

that are in need and deserving of restitution, with the primary focus being upliftment of 

individuals at a more holistic level and, in doing so, has a positive impact on the lives 

and dignity of the people. My approach for this research includes interrogation of the 



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applicable legislation, namely the Broad-Based Black Economic Empowerment 

(BBBEE) Act and its related impact on previously marginalised citizens. BBBEE and 

other similar legislation are devised to right the wrongs of the apartheid legislation. 

Apartheid deprived all black citizens of economic exposure and opportunity to 

accumulate wealth, and the dawn of democracy provided an opportunity for the wrong 

to be corrected.  

The year 2022 marks the 26th year since the first democratic election and neither 

BBBEE nor the other restorative legislation have achieved their desired goals, 

necessitating an investigation into the effectiveness of race-based distributive justice 

interventions. This begs the question: “Was the decision to implement race based 

distributive justice the right choice?”  

My approach includes the expansion of the provisions of the BBBEE Act and the 

impact and promise of this. I explore my particular points of interest outlined below by 

analysing the expectation of the legislation to the implementation and the reality of the 

people of South Africa. My sources of literature were scholarly articles and opinions 

on these aspects, as well as verifiable data sources that provide details of the impact 

in the lives of previously disadvantaged citizens.  

  



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SECTION 1: PREAMBLE 

Introduction  

The 1973 UN Convention declared that “apartheid is a crime against humanity and 

that inhuman acts resulting from the policies and practices of apartheid and similar 

policies and practices of racial segregation and discrimination, as defined in article II 

of the Convention, are crimes violating the principles of international law, in particular 

the purposes and principles of the Charter of the United Nations, and constituting a 

serious threat to international peace and security” (United Nations, 2018). The 

Merriam-Webster dictionary defines a crime against humanity as an “atrocity (such as 

extermination or enslavement) that is directed especially against an entire population 

or part of a population on specious grounds and without regard to individual guilt or 

responsibility even on such grounds.” 

The atrocity of apartheid inevitably had a negative impact on the lives and dignity of 

those subjected to it. With the abolishment of apartheid, there would be two important 

considerations: firstly, the punishment of the perpetrators and, secondly, the restitution 

to the victims. On the first consideration of punishment, it would be an almost 

impossible task to determine who should be punished. Those responsible for the 

decision-making have long perished, and it would be an equal injustice to assume that 

the entire white population, although the primary beneficiaries, had to be punished for 

the apartheid system. This aspect does not feature strongly in my research. The 

second consideration restitution does feature prominently, and the two aspects that I 

intended to explore are the impact of race-based distributive justice as a direct 

response to race-based marginalisation, and, to a lesser extent, the impact of 

apartheid on the dignity of the victims thereof.  



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My primary intention is to examine the effectiveness of race-based distributive justice 

in South Africa by exploring the legislative parameters of the BBBEE Act and the 

implementation of affirmative action as a means of restitution to the marginalised 

population groups, to explore the impact of this decision on the lives and dignity of 

citizens and to propose an alternative approach that is more encompassing of all 

disadvantaged and deserving citizens in the country at large. I will be exploring the 

unintended consequences of race-based legislative justice, such as the negative 

impact on the education of the youth of the country, the creation of a sense of 

entitlement among many of the previously disadvantaged citizens, the creation of a 

culture of unjust entitlement among the politically connected and, lastly, the 

consequences of negatively impacting the dignity and sense of self-worth of previously 

disadvantaged citizens. 

Historical Landscape of South Africa 

To appreciate the study and recognise its purpose, it is important to understand its 

basis, the most significant of which is emphasised below to create context. According 

to History.com, racial segregation has been present in South Africa before the 

introduction of apartheid laws but the promulgation of the Land Act in 1913 fuelled this 

practice by forcing black citizens to live on reserves, for the most part prohibiting them 

from owning land or being party to land use and growth cooperatives. The great 

depression and the world war caused much strife in South Africa and in 1948, when 

the Afrikaner National Party was elected into power, racial segregation was further 

extended to include tribal segregation that was intended to manage any type of 

resistance that may occur. In 1950, the government introduced the Population 

Registration Act of 1950 and prohibited marriages between the designated race 

groups, namely Bantu/blacks (all Africans), coloured (mixed race), white and Asian 



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(Indian and Pakistani). Designated areas were allocated to each racial group, and non-

whites were required to produce a “passbook” when they ventured into non-designated 

areas. The apartheid system was refined with the promulgation of the Promotion of 

Bantu Self-Government Act of 1959, and 10 Bantu homelands were created. All black 

citizens were mandated to live in one of the homelands, where they were purported to 

have full political rights within the homeland, but they were effectively removed from 

the mainstream economy. One of the gravest atrocities of the apartheid era occurred 

in 1961, with the forced removal of 3.5 million black citizens from their homes for 

relocation to the homelands. Consequently, they were forced to sell their homes and 

land to white citizens at ridiculously low prices. The apartheid system did not only 

define the geographical location of citizens, but it also restricted freedom of movement 

and marriage, determined the type and level of education afforded to people, work 

opportunities and a greater sense of autonomy. In addition to those mentioned above, 

the other apartheid laws that directly impacted the people and the economy were the 

Native Administration Act of 1927, the Prohibition of Mixed Marriages Act of 1949, the 

Separate Registration of Voters Act, of 1951, the Bantu Authorities Act of 1951, the 

Bantu Education Act of 1953, and the Group Areas Act of 1950, which restricted and 

controlled all aspects of the lives of the oppressed people.  

Numerous resistance movements emerged such as the African National Congress 

(ANC), the South Indian National Congress, and the Congress of the People and the 

Pan-African Congress (PAC). One of the most impactful events of resistance was the 

Sharpeville march in 1960 that led to the death of 67 unarmed citizens. By 1961, most 

resistance leaders were captured and sentenced to life imprisonment. Despite this, 

the liberation struggle continued. One of the most famous resistance leaders, Nelson 

Mandela, was incarcerated from 1963 to 1990.  



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Citizens continued to struggle but small incremental changes were introduced such as 

the House of Delegates that represented the Indian population and South African 

Coloured People Organisation (SACPO) that represented the coloured population in 

Parliament, but the majority black population were still oppressed and excluded to the 

greatest degree. 

The 45-year span of the apartheid regime gave rise to a battered country with poor 

economic forecasts, little to no foreign investment, exclusion from international politics 

and sport, extreme inequality in education and skills levels, and abject living conditions 

for millions of citizens. In 1990, when the absence of foreign investment and continued 

sanctions by the international community severely threatened the survival of the 

country, it was clear that the apartheid era had to end. The transitory emancipation of 

the country began on 2 February 1990 with the unbanning of the ANC liberation 

movement and the commencement of negotiations to end apartheid. 

Change was justly necessary in South Africa and the newly elected government 

prioritised social and economic reform, commencing with the abolishment of apartheid 

laws and the introduction of new legislation. Equally important was the restorative 

justice process seeking to compensate the marginalised citizens and rectifying the 

wrong that had been perpetrated against them for decades.  

Racial segregation had eroded economic stability and growth in the country and 

consequently deprived citizens of autonomy, freedom and dignity. The focus of my 

study is distributive justice in post-apartheid South Africa, exploring the parameters 

and impact of a race-based restorative process with some contrast to class-based 

restorative processes.  

 



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SECTION 2: WHY DO THIS RESEARCH? 

Research Question 

The question that will guide my research is: “How just and effective is the 

implementation of race-based distribute justice in South Africa?” 

In engaging with this question, my research seeks to discuss issues around whether 

the adoption and implementation of race-based distributive justice has been 

successful in achieving social justice, upliftment and economic freedom for those that 

it is intended to benefit. The exploration intends to question the implementation and 

success factors of the restorative justice processes, interrogating the laws and 

regulations implemented in respect of the Broad-based Black Economic 

Empowerment (BBBEE) Act 53 of 2003, and the ensuing impact on its citizens.  

The distinction of race 

The division of humanity into groups on the basis of some distinction has existed since 

the dawn of the time. The Sandford Encyclopaedia of Philosophy (2022) classifies the 

division into five criteria as follows: “1) Races reflect some type of biological 

foundation, be it Aristotelian essences or modern genes; 2) This biological foundation 

generates discrete racial groupings, such that all members of one race share a set of 

biological characteristics that are not shared by members of other races; 3) This 

biological foundation is inherited from generation to generation, allowing observers to 

identify an individual’s race through her ancestry and genealogy; 4) Genealogical 

investigation should identify each race’s geographic origin, typically in Africa, Europe, 

Asia or North and South America; and 5) This inherited racial biological foundation 

manifests itself primarily in physical phenotypes, such as skin colour, eye shape, hair 

texture and bone structure and perhaps also behavioural phenotypes, such as 

intelligence or delinquency.”(Mack 2020, 1)  



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The colonisation of the continent introduced the European interpretation and 

acceptance of the classification of race groups. The sentiments of Hume, “I am apt to 

suspect the Negroes and in general all the other species of men (for there are four or 

five different kinds) to be naturally inferior to whites.”(Zack 2002, 15) seems to have 

set the tone for race classification in South Africa. Hendrik Verwoerd, known as the 

father of apartheid, echoed the sentiments of Hume and stated that the presence of 

large numbers of black inhabitants was threatening the security and comfort of the 

white people, hence the introduction of racial segregation. Apartheid was born in South 

Africa in 1948 based on physical phenotypes, colour of the skin being the most 

prevalent.  

The impact of the distinction 

The apartheid system was premised on a patterning system with deliberate distinction 

in the distribution of benefits and burdens between the race groups. In addition to the 

absolute prohibition of mixed-race marriages and the ownership of property by black 

citizens, other patterns of distribution were attached to benefits. To demonstrate the 

patterned system, I explored the education system that was implemented to manage 

marginalisation within the race groups.  

The education system was structured to the greatest advantage of the white race 

group where the schools were fully equipped with the best educational resources in 

terms of books and learning aids, built on large pieces of land that accommodated 

swimming pools, gymnasiums, tennis courts and sport training grounds, and were 

serviced by an abundant supply of well-trained teachers. Indian schools were also built 

on fairly large pieces of ground, equipped with adequate learning material and some 

aids. Sports grounds were available at all schools but there was a definite absence of 

tennis courts, swimming pools and facilities for specialist sports such as rugby. 



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Coloured schools were equipped with aids similar to those of Indian schools but with 

lower quality of education and amenities. In general, few schools were built for the 

black population.  

The materials used and the general quality of the buildings were extremely poor, with 

most lacking the basic amenities such as water and sanitation. The quality of the 

education was controlled via the segregated curriculum. Mathematics and science 

subjects were completely absent from the curriculum of black schools, effectively 

prohibiting black children from potentially pursuing careers in the medical, science and 

engineering fields. The marginalisation within the education sector continued in tertiary 

education where black citizens had little choice in furthering their education because 

of the lack of facilities available to them. All educational institutions were open to white 

students and only approximately 40% of them allowed enrolment by students of other 

races. 

This type of systematic, deliberate, well-orchestrated marginalisation were equally 

applied in other sectors, such as healthcare, basic services of electricity, water, 

sanitation and transportation. The effects of this marginalisation are still visible today 

with millions of citizens being exposed to sub-standard medical care, characterised by 

a shortage of adequately trained doctors, insufficient supplies of medicine, poor 

specialist facilities, being subject to long queues when treatment is required, and still 

living without sanitation and water. Each of the categories mentioned above can be 

further scrutinised to determine where and how the marginalisation continues.  

Importance of the Research 

The question is important because it seeks to engage with the historical injustice of 

the apartheid system and discuss the effectiveness of the implementation of race-



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based distributive justice in South Africa and the continued inequality and economic 

marginalisation of those targeted by the restorative legislation. 

Complete rectification may never be achieved and coming close might be the best that 

can be expected. For example, the United States of America was largely steeped in 

the tradition of slavery, a practice abolished completely in 1865. It would be expected 

that the integration of society would be completed 156 years later and that there would 

exist a seamlessness among all citizens, yet this was not the case. News feeds 

constantly highlight incidents where black Americans are oppressed, harmed or 

senselessly killed. The killing of George Floyd in 2020 that sparked the worldwide 

“Black Lives Matter” phenomenon highlights the continued injustice that black people 

are subjected to.  

Meanwhile, 28 years after the dawn of democracy, South Africa remains a country of 

mass inequality, despite the eradication of inequality being a key focus of the 

democratic government. This commitment is guided by section 9(1) of the Constitution 

of South Africa, 1996 (Constitution), which states, “Everyone is equal before the law 

and has the right to equal protection and benefit of the law” And section 9(2) which 

states “Equality includes the full and equal enjoyment of 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”. Determining a time frame that is “reasonable” for the 

complete rectification of justice is almost impossible but incremental progress is 

necessary. 

The moral justification for historical redress is sometimes questioned on the basis that 

those who perpetrated the injustice are no longer alive to address their actions and 



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those who were discriminated against are also not alive to receive redress. The 

question thus arises, “Should current generations be liable for the redress to atone for 

the injustice of their predecessors and, similarly, should current generations be 

recipients of the redress that they have not justly earned?”  

It is my position that historical redress is morally justifiable. The fact that those directly 

responsible for the injustice are not in a position to make redress does not mean that 

the redress is not important or necessary. The effects of injustice are not confined to 

the generation that was directly impacted, but the residual effects are felt by many 

future generations.  

A black South African living in 1948 was prohibited from owning land and only had 

access to sub-standard education and limited employment opportunities. These 

individuals would not have had any opportunity to accrue wealth or uplift the lives of 

their family members, which translates into generational injustice and, consequently, 

a need for generational redress. 

Armstrong defines distributive justice as “the ways that benefits and burdens of our 

lives are shared between members of a society or community.” (Armstrong: 2012). 

The principles of distributive justice serve as a moral compass for the just distribution 

of benefits and burdens. The research is significant because it seeks to assess the 

effectiveness of race-based distributive justice in South Africa. The research aims to 

highlight that there is a moral obligation to address the damage and disadvantage 

caused by the apartheid era. The study has the following intentions: 

1. To determine the effectiveness of the race-based distributive justice by 

interrogating some of the applicable legislation. 



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2. To highlight the unintended consequences of race-based distributive justice 

and of not considering the needs of all citizens. 

3. To propose class based restorative justice as an alternative. 

The rectification of injustice cannot be achieved over a short period of time; therefore, 

it is important and essential to periodically examine the effectiveness of the restitutive 

measures. The legislations, guidelines and practices introduced were crafted after 

much research and exploration and have the intention of uplifting individuals, whole 

communities and the country holistically. At the point of drafting legislation, the 

envisaged success is theoretical, as the effectiveness and value of any upliftment 

mechanism can only be established once there are results that can be measured to 

determine the benefits derived against the intended goals.  

In addition, where the greater good of legislation introduced is upliftment of the entire 

country, addressing historical injustice and the consequent adoption of race-based 

distributive justice in South Africa in response to the damage and disadvantage 

caused by apartheid, a significant part of the problem is addressed, but some matters 

are still left unaddressed. Assuming that every black, Indian and coloured person were 

negatively affected to the same extent or in the same way by the apartheid era would 

be an unfair assumption; similarly, it would be short sighted to assume that every 

single white citizen benefitted from apartheid to the same extent and were not 

disadvantaged by apartheid at all. Therefore, it is important to determine 

proportionately how the restorative processes introduced should be implemented for 

the benefit of the entire country and all citizens. 

The proposal of a class-based restorative process seeks to address the injustice in 

the context in which it is experienced by those who were impacted, taking into 



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consideration the extent of their damage or disadvantage. This approach has the 

advantage of providing restitution to those in need, where the need has been 

established in a structured manner and not primarily of the categorisation by race but 

is also inclusive of other citizens. The research intended to demonstrate that there is 

a greater good that can be achieved with class-based restorative justice as opposed 

to race-based restorative justice while still maintaining the moral obligation to address 

injustices of the past. 

SECTION 3: PHILOSOPHICAL FOUNDATION FOR HISTORICAL 
INJUSTICES OF APARTHEID 

What has been discussed so far points to the apartheid system being unjust. 

Nevertheless, before delving more into this injustice, I provide some philosophical 

foundation for the historical injustice of apartheid by looking at Robert Nozick’s 

libertarian theory or entitlement theory of justice. 

It is important to understand the relevance of Nozick’s (1974) entitlement theory and 

the differences in “time-slice” or “end result” principles of justice and historical 

principles of justice. The basic conception of the “time-slice” principle is that the 

determination whether a distribution is just or unjust is based on the distribution at a 

particular point in time. It is questionable whether a given point in time provides an 

accurate reflection of a particular situation or a holistic view of all the material elements 

of that situation. If one has to, today, reflect on the life of a 50-year-old middle-class 

black South African, one will probably deduce that the individual does not need too 

much in the sense of distribution. However, the pattern of today, does not provide an 

accurate reflection of the person’s life journey, especially considering that they would 

have lived in the time of apartheid, been subject to the restrictions of movement, sub-

standard education, poor living conditions, oppression of their liberties and all the other 



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hardships that were part of the apartheid system. Therefore, “time-slice” or “end-result” 

principles do not justly represent an option for distributive justice for the previously 

oppressed South African citizens; neither is it representative of many other citizens 

because the changing economic landscape in the country has given rise to an entirely 

new population dynamic. The economic classification of citizens into lower, middle or 

upper income has significantly shifted since the abolishment of apartheid.  

Nozick (1974) does not interpret “time-slice” or “end-result” principles to be a natural 

way of interpreting a situation, purporting that people want to know how things 

originated in the first place and whether the current situation justly represents its 

history. As an example, if faced with a situation where the legitimacy of student 

admissions at the university is being questioned, one will have to look back on the 

applicable admission requirements for the relevant faculty as well as the application 

process, interrogate each application to determine if every student was legitimately 

admitted and if those that were denied admittance were correctly treated. It is the 

history of the application process that will determine its legitimacy. Similarly, with 

distributive justice, it is important to establish the legitimacy of the distribution that 

individuals may be entitled to in order to determine its justness.  

Nozick (1974) further strengthens his argument that justice is historical by citing his 

famous Wilt Chamberlain example, which illustrates that patterns of distribution cannot 

be maintained at the expense of individual liberty. Nozick (1974) uses this example to 

illustrate that the end-state or time-slice principles of justice that are based on a just 

pattern of distribution are not possible without the violation of people’s rights or without 

disruption of their lives. In the Wilt Chamberlain example, considering that when he 

was playing, the attendance at home games increased significantly, he agreed to 

receive an extra 25 cents from every ticket sold for his games. There are numerous 



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factors of liberty that are present in this example: Wilt’s liberty to charge the additional 

fee, the stadium’s and team managers’ acceptance of the arrangement, the exercising 

of free will by the supporters to pay the extra 25 cents and the acceptance by the other 

players that Wilt will be paid more than them. In referencing this example, Nozick 

(1974) highlights that redistributions that intend to create equality infringe on the rights 

of individuals. Similarly, purporting that justice would be served if all South Africans 

were equal or were treated equally in terms of distributions would not be justice at all. 

The implementation of race-based distributive justice does not take into consideration 

that some may need more than others or that some previously disadvantaged citizens 

were affected more than others. Nozick (1974) claims that the upshot of all this is that 

the only promising theory of justice is a historical one, which is not pre-occupied with 

a particular pattern of distribution of wealth which a society must agree to and which 

must be permanently maintained, but rather one which places emphasis on the 

process by which any given distribution of wealth has historically come about 

(Kowalenko 2020, 15). 

Nozick’s principle of distributive justice can be summarised that a distribution of wealth 

is just if everyone is entitled to the holdings they possess under the distribution. 

Injustice in South Africa is historical and the entitlement theory explores historical 

injustice with the principles of justice in acquisition and justice in transfer that provide 

an appropriate setting for the study and the rectification of justice principle that will 

especially explore the effectiveness of distributive justice in South Africa.  

The entitlement theory is an appropriate foundation for the exploration of my research 

and comprises the following principles: 



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a) “A person who acquires a holding in accordance with the principle of justice in 

acquisition is entitled to that holding.” The principle of justice of acquisition can be 

complicated because proof of the acquisition is not always possible, especially related 

to historical acquisitions. Nozick leans on John Locke’s idea that mixing one’s labours 

with the world can generate ownership of some part of the world. Nozick questions 

why mixing one’s labour results in the acquisition of new and not the loss of the old? 

Nozick concludes that “what is so significant about mixing our labour with the material 

world is that in doing so, we tend to increase the value of it, so that self-ownership can 

lead to ownership of the external world in such cases” (Nozick 1974, 149-182). In John 

Exdell’s (1977, 144) interrogation of Nozick’s distributive justice, he shared Nozick’s 

sentiments by stating, “This notion of property helps us understand why earlier 

theorists spoke of people as having property in themselves and their labour. They 

viewed each person as having a right to reap the benefits of what he did.” An important 

aspect of this argument is that people have the right to decide about themselves for 

themselves and the extent to which they will use their labour to benefit themselves.  

This foundational principle is appropriate for the exploration of injustice in a South 

African context because before colonisation and settlement of European populations 

in Southern Africa, two major groups existed, namely the Bantu and Khoisan 

populations. The Khoisan people first lived in what is now called South Africa between 

80 000 and 100 000 years ago. The Khoisan people generally followed a pastoral or 

hunter-gatherer lifestyle and did not move across vast planes of land, but were more 

concentrated to particular areas. It is believed that the Bantu inhabitants first lived in 

South Africa between 300 and 500 AD. The Bantu inhabitants were more inclined to 

farming and metallurgy, were more adaptive to move freely across large pieces of land 

and have a strong presence across the entire expanse of the country. The Bantu 



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inhabitants were able to sustain larger populations and spread easier than the smaller 

pastoralist and hunter-gatherer populations. These movements resulted in some 

societies, such as the Zulu kingdom, becoming particularly prominent in particular 

areas. Their movements stopped around the 1700s when the migration of European 

people began. 

Due to the nature of their farming lifestyle, the Bantu inhabitants mixed their labour 

with the land to produce food supplies for nourishment and sustenance for themselves 

and their families. Mixing one’s labour with the land does not only yield a single benefit 

to those working the land, but also contributes to improving the land by increasing its 

value. The actions of tilling and farming transform land from barren and unused to 

fertile, usable and valuable.  

Nozick (1974) explains that for justice in holdings to be permissible, it must be a “back-

ward looking account that would have determined how the holding originated.” He 

further purports that “if the holding came about by permissible and title-conferring 

modes of action, the possessor will be entitled to it. If the holding came about by modes 

of action that are not permissible (or are permissible but not title-conferring) the 

possessor will not be entitled to it. Thus, entitlements are historical” (Mack 2018, 18). 

When the European settlers displaced the original inhabitants in South Africa, they did 

not do so by virtue of any “title-conferring” actions, but rather by forcible removal. This 

action does not constitute a just holding and entitlement cannot be conferred. 

When applied, the principle of justice in acquisition relates to two criteria: 1) the method 

of the original acquisition and 2) determining if the person acquiring the holding is 

rightfully deserving thereof. When apartheid legislation was introduced “In one of the 

most devastating aspects of apartheid, the government forcibly removed black South 



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Africans from rural areas designated as “white” to the homelands and sold their land 

at low prices to white farmers. From 1961 to 1994, more than 3.5 million people were 

forcibly removed from their homes and deposited in the Bantustans, where they were 

plunged into poverty and hopelessness” (history.com). This act of forced removal of 

black communities and the subsequent ”ownership” of the land by the white population 

do not satisfy the justice in acquisition principle and bring into question their 

entitlement thereto.  

Speaking about these principles, Coleman, Frankel and Phillips (1976, 438) note that 

justice is inherent “in the process by which holdings were obtained, and is content with 

whatever distribution results from that process”. Justice in acquisition provides that an 

individual can enforce their rights to a holding and for the principle to be true, no person 

can take or use the holding of another without violating their rights. The forced removal 

of black citizens from their land was in direct violation of their rights and the principle 

of justice in acquisition.  

In post-apartheid South Africa, the necessity for the redistribution of land has been 

established as one of the fundamental steps in the reconciliation process. The 

expropriation of the land is one of the most important, but equally one of the most 

contentious, issues. It is essential to determine how just and equitable redistribution 

of the land in question will take place, without causing further harm to social 

considerations such as people’s dignity and economic aspects such as food security. 

To complicate this matter further, the Constitution does not make any specific 

pronouncements on the topic and addresses it only in a basic sense; for instance, that 

expropriation must be “for a public purpose or in the public interest” and “subject to 

compensation” decided by agreement or by the courts (Republic of South Africa, 1996, 



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sec. 25). Following the same path of forcible removal and reallocation of land is not a 

viable in option and will not meet the entitlement requirement of justice in acquisition. 

b) “A person who acquires a holding in accordance with the principle of justice in 

transfer from someone else entitled to the holding, is entitled to the holding.” 

The justice in transfer principle is premised on the willing transfer of acquisitions from 

one party to another provided that the original acquisition was just. An individual 

cannot transfer to another a holding that he acquired through theft or forced removal, 

because the original acquisition was unjust. We have already established that the 

transfer of holdings from previously disadvantaged groups by the white population 

group during apartheid is flawed and unjust. Therefore, the transfer of those holdings 

to future generations of the white race group would not constitute a just transfer. 

Consequently, the generational wealth accumulated from these holdings has not been 

earned justly. Justice in transfer can only apply to holdings that were legitimately 

acquired. 

Another critical aspect of justice in transfer is the willingness of the individual to be 

party to the transfer. “From each as he chooses… to each as he has chosen” (Exdell 

1977, 145). Individuals should have the option to exercise autonomy in transfer of their 

holdings on a willing seller, willing buyer, or willing giver, willing receiver arrangement. 

The forced removal (no willingness) of previously disadvantaged citizens from their 

land does not satisfy the provision of Nozick’s second principle. 

 Justice in transfer is not confined to holdings, but also extends to labour. We can 

choose to give away our labour, trade it or keep it for ourselves. It would be just to 

exercise any of these options autonomously, but being forced to utilise one’s labour 

for the benefit of another would be contrary to the principles of justice in transfer. In 



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addition previously disadvantaged groups experiencing forced removals from their 

land, they were forced to work on the same land for the benefit of others.  

There are numerous instances where land was successfully expropriated and handed 

back to the communities who were forcibly removed from it, but the lack of education 

and support resulted in many of these failing or not yielding the desired level of 

upliftment. I have identified above that the land restitution process implemented by the 

South African government does not support a just acquisition nor does it support a just 

transfer because there is an element of harm that is caused for those who benefitted 

from the land, which is contrary to Nozick’s principles.  

 c) “No one is entitled to a holding except by (repeated) application of (a) and (b)” 

(Nozick 1974, 151).  

Nozick’s third principle makes space for the continuation of just acquisition and 

transfer of benefits and burdens to following generations. If this cycle continues, it will 

create a fair landscape for future generations. 

“The existence of past injustice (previous violations of the first two principles of justice 

in holdings) raises the third major topic under justice in holdings: the rectification of 

injustice in holdings” (Arnold, Beauchamp and Bowie 2014, 553). The violations 

perpetrated by the European settlers by forcibly removing citizens from their justly 

acquired land are a violation of the first two principles of justice in holdings. The 

principle of justice in rectification is available as restitution for the violations suffered 

by those whose land was taken away from them. “If past injustice has shaped present 

holdings in various ways, some identifiable and some not, what now, if anything, ought 

to be done to rectify these injustices?” (Coleman et al. 1976, 453). Apartheid favoured 

the white race group in all aspects: employment, housing, property and others. 



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However, it would stand to reason that present holdings are not reflective of a just 

society and rectification would be essential. 

Therefore, of paramount importance here are Nozick’s sentiments “that one may not 

acquire property if something of one’s ownership would harm others.” One should not 

take for themselves more than they need, and take with due consideration of the needs 

of others. The mind-set of providing enough for all and considering all when allocating 

benefits is a catalyst for considering all parties relevant to a transaction. This essential 

component of equity and justice was blatantly absent in the apartheid era. 

In the South African context, unjust enrichment, explored further, especially in relation 

to politically connected persons, was in direct contravention of just acquisition. The 

actions of politically connected persons caused much harm to the masses of 

previously disadvantaged citizens. There was no justice in the manner in which these 

acquisitions were made because those benefitting from these transactions were not 

entitled to the holdings. Just rectification would recognise that even if it is not possible 

to identify those individuals from whom the holding was initially expropriated, it would 

be important to consider rectification at a more societal level to contribute to the 

upliftment and betterment of all black people.  

  



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SECTION 4: RATIONALE AND ARGUMENTS FOR RACE-BASED 
POLICIES 

Rationale and political argument of race-based policies 

Once apartheid ended, the restitution process had to begin. Apartheid was ruled a 

crime against humanity, and it was important to acknowledge the ills that were 

perpetrated against the black, Indian and coloured race groups. In contrast to 

countries like the United States of America where there has been no 

acknowledgement of the wrongs of segregation and slavery, South Africa made a 

decision to establish a mechanism to allow victims and oppressors to seek out the 

truth by sharing their respective experiences. The Truth and Reconciliation 

Commission was established in a court-like format and gave a voice to victims of gross 

human rights violations. This voice could express their hurt, seek answers for their 

suffering and try to establish the fate of lost loved ones.  

This was an important step in the reconciliation process that allowed oppressed 

citizens an opportunity to seek and receive answers and allowed perpetrators to 

explain, repent and seek forgiveness. This process was important because it 

highlighted that not all white citizens supported the apartheid regime. Many felt 

compelled to abide by the rules and laws established by the minority government and 

did not support the system of apartheid but were too afraid of retaliation, therefore they 

did not speak out or object at the time. However, when the Truth and Reconciliation 

Commission was established, many took the opportunity to account for their actions 

by sharing the truth about the actions they were forced to take.  

The prioritisation of the groups directly impacted by the apartheid legislation seems 

reasonable considering the arduous lives they lived. The ANCs rationale to prioritise 

those who were most affected by apartheid seems reasonable in the context, but 



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assumes that black, Indian and coloured citizens were the only groups affected by 

apartheid. In prioritising only those who were mentioned in the apartheid legislation, 

the ANC implemented legislation that defies the equality provisions contained in their 

founding documents and legislation. Consequently, they created an insincere 

environment which they purport to be grounded on creating an equal society for all 

citizens, but their position, actions and decisions eventually taken are contrary to the 

position they promoted initially, to gain the trust and support of the people. The rational 

of race-based distributive justice defies the foundation that South Africa is a country 

for all its people.  

Philosophical or moral argument for race-based policies 

The implementation of race-based justice that focuses only on black, coloured and 

Indian citizen’s purports to create a better life for these race groups. When one 

collectively reflects on the country as a whole, it would be difficult to ignore the millions 

of white citizens who are living in abject poverty. Race-based distributive justice does 

not provide for the inclusion of the white race group. “A white skin in South Africa is a 

protection against racial discrimination: it offers no defence against poverty, and for 

generations, large sections of whites have lived below subsistence level” (Sachs, 

2012).The apartheid system created many opportunities for white citizens and 

shielded them from many ills but it did not guarantee a lucrative lifestyle or protection 

against menial labour prospects. Consequently, there are many white citizens who are 

poor, whether due to their own bad luck or just sheer lack of appreciation for the 

advantages afforded to them during the apartheid era. A critical assertion that I make 

in this study is that decisions made and actions taken related to restitution should 

consider all citizens who are disadvantaged or deserving and not be solely based on 

racial considerations.   Excluding white  citizens  from the restitution equation does not 



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align to the prescripts of the Freedom Charter “….that South Africa belongs to all who 

live in it, black and white…” (Freedom Charter, 1955).These practices contribute to 

South Africa being one of the most unequal countries in the world. As quoted by Louis 

P. Kruger (2014, 442), Thuli Madonsela shared the same sentiments in her speech at 

Stellenbosch University where she added, “Compounding the situation is that poverty 

and unemployment have worsened and also the fact that, that too follows the contours 

of racial, gender and other forms of structural inequality or discrimination”. 

The restitution is also completely blind to social suffering. The prohibition of mixed 

marriages affected people across all racial lines. Restitution in this respect would be 

challenging, but it does demonstrate that the effects and impact of apartheid reached 

beyond the marginalised groups and affected other citizens as well. 

It cannot be assumed in the context of South Africa that the first principle of Nozick’s 

theory “A person who acquires a holding in accordance with the principle of justice in 

acquisition is entitled to that holding” (Nozick 1974, 151) can be justly applied to all 

white South Africans. Not every white citizen had the opportunity or took advantage of 

the opportunities the apartheid system presented. Many white citizens did not agree 

with apartheid and displayed enormous support for the liberation movements.  

According to the publication “White Opposition to Apartheid in the 1950s”, between 

the years 1950 and 1953, numerous white citizens opposed the stance of the 

Nationalist Party and thousands joined the night-time marches to oppose actions such 

as the removal of the names of Indian and coloured candidates from the voters’ roll. 

They further supported the Congress Alliance to highlight the repressive apartheid 

laws and drew support for the Congress Alliance. (Everatt 2010, 33 – 47).  



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Just as blanket restitution to black, Indian and coloured citizens does not address the 

extent to which each was affected and prejudiced by the apartheid system, the 

assumption that all white citizens benefitted extensively and were not at all prejudiced 

is a short-sighted assumption. In this study, I explore class-based distributive justice 

as an alternative distributive option for inclusion of all citizens of the country.  

SECTION 5: INTERROGATION OF THE APPLICABLE RACE-BASED 
LEGISLATION 

In my examination of the effectiveness of race-based distributive justice in South 

Africa, I explored the Broad-Based Black Economic Empowerment Act (BBBEE) Act, 

the implementation of which is commonly known as affirmative action. My arguments 

firstly interrogate the prescripts of the act, demonstrating the shortcomings of its 

implementation and then the impact to the designated groups in relation to their own 

economic prosperity and consequential impact on their dignity and wellbeing. 

Broad-based Black Economic Empowerment Act 

What is Broad-Based Black Economic Empowerment? 

“The BBBEE Act strives for the effective participation of black people in the economy 

in order to achieve the economic unity of the nation” (Kovacevic 2007, 6). The 

implementation of BBBEE is the practice or policy of favouring individuals belonging 

to groups regarded as disadvantaged or subject to discrimination. The BBBEE Act was 

developed to advance the economic transformation of the country and promote the 

inclusion of Black people into the mainstream economy. The Act was developed with 

specific focus on the previously disadvantaged black, Indian and coloured race 

groups, in particular women, youth, workers, people with disabilities and people living 

in rural areas. Extracts from the Act define its major focus as,  



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a) increasing the number of black people that manage, own and control 

enterprises and productive assets; b) facilitating ownership and 

management of enterprises and productive assets by communities, 

workers, co-operatives and other collective enterprises; c) human resource 

and skills development; d) achieving equitable representation in all 

occupational categories and levels in the workforce; e) preferential 

procurement from enterprises that are owned or managed by black people; 

f) investment in enterprises that are owned or managed by black people. 

(Republic of South Africa, 2003). 

Exploration of the Code 

a) Increasing the number of black people that manage, own and control enterprises 

and productive assets 

For this goal to be achieved or at least be achievable, it would be essential that the 

targeted group be equipped to appreciate the benefits the legislation was intended to 

bring them. To be equipped to manage, own and control an enterprise, it would be 

essential that black people targeted by the Act should be educated and trained to do 

this. With the marginalisation that black people were subjected to, especially with 

regard to education, this is not a goal that would be fulfilled easily. During the apartheid 

era, black people did not have access to quality, broad-scoped learning, such as 

business studies and mathematics, among others. The education system governed by 

the Bantu Education Act, 1953, was effectively one that prescribed inferior education 

to black students. The primary aim of the education system was for black students to 

be and remain unskilled or semi-skilled labourers and consequently remain 

subservient to white South Africans. Jansen (1990), quotes Horrell (1963, p41),  “The 

differentiated curricula introduced in Black South African schools in 1922 had two 



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essential features: (a) teaching of the vernacular was made compulsory in all primary 

classes and (b) practical skills were emphasized; hygiene, handwork, gardening, 

agriculture, housecraft, and needlework featured prominently in the syllabi. Greater 

curriculum uniformity existed at the high school level between black and white 

schools.” Despite a greater uniformity at high school level, without exposure to 

foundational elements of mathematics, business studies and science, the majority of 

black students were still not able to benefit, so they continued to be disadvantaged. In 

addition, very few opportunities for tertiary education existed for black students. In 

1959, the National Party passed the Extension of University Education Act, No. 45 of 

1959, which extended the apartheid principles to be applied at higher education levels 

as well. In Modernising Racial Domination (1971), Heribert Adam notes "With regard 

to educational opportunities, the five non-white universities have on the whole been 

successful in terms of the apartheid programs, despite the limitations placed on them 

as separate institutions under paternalistic Afrikaner guidance" (Politicsweb, 2012) 

Despite there being dedicated universities for marginalised groups, they were not able 

to cater for the majority of the designated groups in terms of numbers. Furthermore, 

due to the limited curriculum at school level, many students did not meet the entrance 

requirements for the courses they wanted to pursue, especially those in the business 

and science faculties. 

To some extent, the need to assist black people was recognised; consequently, the 

codes of good practice were drafted to provide guidance for the implementation of the 

Act and familiarise recipients with the key elements. Furthermore, some reprieve was 

afforded to start-up enterprises with regard to qualification requirements; however, the 

costs involved in complying with these requirements were a major drawback to start-

up enterprises and further contributed to the hindering of the progress of the black 

https://www.politicsweb.co.za/news-and-analysis/apartheid-and-the-universities


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population groups. According to Kovacevic (2007, 6) “Whether the new legislation is 

government-sponsored discrimination or rightful redress of apartheid injustice, 

remains a matter of controversy. What is clear is that the initiative is an inadequate 

approach to extending prosperity.”  

The BBBEE codes were intended to smooth the integration process, and the drafting 

of the charters included the involvement of a small group of selected black citizens, 

most of whom already had some exposure to business transactions. They were not 

able to relate to or cater for the needs and interest of a first-time businessman who 

were intended to be the primary beneficiaries of the legislation. The small complement 

of representatives does not fully and sufficiently represent the population affected by 

discrimination, not in terms of numbers and especially not in terms of interests. In 

addition, the exposure of black people in general to fundamental business practices, 

the latest technologies and so on would be limited due to their isolation and lack of 

exposure to the outside world. Selective inclusion of black representatives in this 

context is unjust and reminiscent of the segregation brought about by apartheid.  

b) Facilitating ownership and management of enterprises and productive assets by 

communities, workers, co-operatives and other collective enterprises 

The focus of the initial BBBEE legislation was very narrow and concentrated on 

affording opportunity primarily to those who were already wealthy or politically 

connected. BusinessTech (2015) states that, according to Dr Anthea Jeffery, Head of 

Policy Research at the Institute of Race Relations (IRR), “BEE is a key reason why 

economic growth in South Africa lags so far behind other emerging countries.” 

According to research, BBBEE has benefitted approximately 15% of the 44.2 million 

black people in the country. The other 85% of the population previously disadvantaged 



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by apartheid legislation continues to be disadvantaged. The government continues to 

promote that BBBEE is beneficial to the country; however, research data has shown 

that the majority of the previously disadvantaged population continue to be poor 

despite some improvement in the economic standing of a few individuals. In 2015, 

14% of the previously disadvantaged population group were dollar millionaires, which 

has increased to 45% in 2017. While this trend is positive, it is reflective of high net 

worth individuals and not the population at large. These statistics serve as testimony 

that BBBEE benefits a few elite and not the greater population it was devised to 

benefit. 

c) Human resource and skills development  

An appropriate opportunity to commence with integration efforts at community level 

would have involved mechanisms for the sharing of knowledge and defined processes 

for skills transfer. The white population possessed knowledge, experience and 

exposure to all facets of business processes. The new regime would have been wise 

to have engaged these groups to encourage community based education. They could 

have introduced incentive schemes to reward those who are will to share knowledge. 

It would have also been an opportunity to educate both black and white citizens that 

upliftment on a greater societal scale ultimately benefits all citizens and consequently 

the country.  

d) Achieving equitable representation in all occupational categories and levels in the 

workforce  

A severe shortcoming in the original versions of the Act was the lack of focus on the 

empowerment of black women and persons with disabilities. Subsequent 

amendments were more specific in aligning to the demographic presence of the 



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related population groups in the country, including the inclusion of persons with 

disabilities and particular focus on women empowerment was elevated. Despite this, 

Nomalungelo Gina, Deputy Minister of Trade and Industry, in her speech at the second 

Women’s Empowerment Conference in 2019 cited the recent studies conducted by 

the BBBEE Commission for 2017 and 2018 that state, “Black women still occupy less 

positions compared to males and white people on the boards of entities listed on the 

Johannesburg Stock Exchange (JSE), standing at 18% in 2017 and 21.63% in 2018, 

despite women being the majority in this country. Further, in terms of ownership, Black 

women were sitting at about 9% in 2017 and 10.1% in 2018, which remains low 

considering the demographics” (Gina 2019). Considering that the BBBEE Act was 

created with the specific intention to uplift previously disadvantaged citizens, the 

statistics should show a positive trend 24 years after the Act had been implemented; 

however, this is not representative of the demographics of the country as a whole. 

According to the Quarterly Labour Force Survey of the 2nd quarter of 2021, women in 

South African remain disadvantaged. Forty-one percent of black women, 30% of 

coloured women and 22% of Indian women were unemployed, as compared to 8% of 

white women. (Stats SA 2021). Even when black women are able to take advantage 

of employment opportunities, appointments to decision-making positions and jobs in 

certain sectors, or of certain characteristics, remain elusive. In a 2018 Grant Thornton 

study, it was revealed that although almost one-third (29%) of senior roles in South 

Africa are now filled by women, one in five local businesses (20%) still have no women 

at all in senior positions. Twenty-four years after democracy, these statistics paint a 

grim picture of affirmative action. 

 



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e) Preferential procurement from enterprises that are owned or managed by black 

people  

Another major inhibitor to the real economic transformation is fronting. A “fronting 

practice” is defined in the Amendment Act as “a transaction, arrangement or other act 

or conduct that directly or indirectly undermines the achievement of the objectives of 

the Act or the implementation of any of the provisions of this Act.” (BBBEE, 

Amendment. 4). The definition provides a list of fronting practices which include, but 

are not limited to, when “Black persons, who are appointed to an enterprise, are 

discouraged or inhibited from substantially participating in the core activities of that 

enterprise” and “the conclusion of a legal relationship with a black person for the 

purpose of that enterprise achieving a certain level of BBBEE compliance, without 

granting that black person the economic benefits that would reasonably be expected 

to be associated with the status or position held by that black person” (BBBEE 

Fronting, Schindler Attorneys). According to the Head of the B-BBEE Commission, 

Zodwa Ntuli, since 2016, the commission had received 800 complaints of fronting, 

cases that were in various stages of investigation. Fronting practices, poor 

implementation of the Act and inefficient management thereof have contributed to the 

slow economic transformation in the country.  

Deputy Minister Nomalungelo Gina is quoted as saying, “Misrepresentation and 

fronting by white companies is a serious problem in this country and it has advanced 

itself to become too sophisticated to easily detect. Unfaithful entities have learnt how 

to blend their B-BBEE status to appear as genuinely complying with the codes and 

therefore escape transformation imperatives as set out by this government. But 

equally, because of desperation, these white companies find some willing black 

fronting tokens who agree to assist in these camouflaging efforts and be made to sign 



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shareholding equities whilst knowing that they are not” (www.sanews.gov.za Oct 

2020). These sentiments are apt in summarising the consequences of race-based 

policies. It would have been wiser to consider allowing all citizens opportunities to do 

business, with the introduction of a scorecard that is not punitive to white citizens, but 

creates opportunity within the context of upliftment goals.  

This would have severely reduced the need or inclination of companies to resort to 

such measures. Furthermore, as detailed above, the poor socialisation of the 

legislation among those it seeks to benefit has allowed desperation to fester and, 

ironically, created additional opportunity for the exploitation of the previously 

disadvantaged. Louis Kruger, in his 2014 paper, Broad-based Black Economic 

Empowerment (B-BBEE) in South Africa: A Moral and Ethical Management 

Perspective raises the moral and ethical standpoint of BBBEE, especially in 

comparison to the UN declaration of independence which affords all people, 

irrespective of their nationality, sex, ethnic origin, colour, religion or any other 

distinctions the respect to be treated equally.  

The BBBEE Act in its current application is contrary to this provision, and the 

consequence of unequal treatment raises additional challenges, such as fronting. 

Fronting practices use black people as pawns. They are used as facilitators in the 

registration process of entities to support the achievement of a particular BBBEE 

rating, but are not afforded the corresponding opportunity to derive an economic 

benefit from the enterprise. The cyclical effect of continued injustice stifles the 

economic growth prospects of the country. Kruger (2014) quotes Jeffery in her 

analysis of the BBBEE Act, “… lack of critical scrutiny of BEE in all its aspects… partly 

because of its supposedly remedial aims, which tend to be taken at face value, so 

limiting proper evaluation” (Jeffery 2014, 25). Evaluation would be important to 



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determine if the Act meets its intended purpose and benefits those it is intended to 

benefit. Periodic evaluation would also assist in identifying areas of weakness, 

strengths, inefficiencies and provisions that need to be amended, which can contribute 

to the refinement of processes that have greater benefit for the people and country as 

a whole. 

f) Investment in enterprises that are owned or managed by black people 

In its 1994 Reconstruction and Development Programme (RDP) document, the ANC 

declared that a “central objective of the RDP is to de-racialise business ownership 

completely through focused policies of Black economic empowerment” (Southall 2008, 

699). The ANC government does not display a firm commitment to the implementation 

of the BBBEE Act. There seems to be reluctance by the government to compel white-

owned businesses to contribute to economic transformation for fear of consequential 

economic impact of white disinvestment in the economy. However, “the government 

has co-operated with corporate capital empowerment targets acceptable to local 

industry and foreign companies. Black business has been peripheral to the 

empowerment process. Black business has expressed criticism at the slow pace of 

reducing white domination of the corporate while labour has criticised BEE deals for 

enriching a small number of senior ANC figures” (Southall 2008, 699). 

For the most part, the government failed to implement BBBEE decisively and are 

grappling with primary issues such as, should BBBEE involve a transfer of ownership; 

if so, what should the percentage be; should the percentage constitute a majority 

shareholder and how should that be determined? Corporate enterprises, on the other 

hand, attempted to engage in the transfer of share options to previously marginalised 

groups by creating BBBEE share schemes. As an example, “Sasol, in 2008, have 



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been more broad-based with a larger percentage of shares being set aside for 

employees and trusts representing black women, the disabled and community groups. 

In addition, union investment companies deploy assets of around R2 billion ($275 

million), supposedly on behalf of their members. But the transfer of shares has been 

predominantly to individuals close to the ANC government” (Southall 2008, 700). An 

Ernst & Young survey revealed that the value of empowerment deals between the 

years 1995 – 2005 was R285 million, which indicates some positivity in the upliftment 

of black people; however, these deals were not to the benefit of the majority of the 

marginalised racial groups.  

Nozick’s entitlement theory principles are premised on justice and are not concerned 

with equality; consequently, it would be important for those affected by the injustice to 

be justly compensated, but it does not dictate that this compensation would be equal.  

Implementation and Impact of Affirmative Action  

Ratuva (2013) states that “Affirmative action is a mechanism for ‘Black empowerment’, 

the term used to ensure higher levels of economic, educational, cultural and political 

attainment for previously oppressed blacks.” Fullinwider, in the Stanford 

Encyclopaedia of Philosophy (2018) takes affirmative action as involving a policy 

whereby “positive steps [are] taken to increase the representation of women and 

minorities in areas of employment, education, and culture from which they have been 

historically excluded. When those steps involve preferential selection – selection on 

the basis of race, gender, or ethnicity – affirmative action generates intense 

controversy.” In addition, affirmative action in South Africa is defined in 

the Employment Equity Act, No. 55 of 1998 (Act) as “Measures designed to ensure 

that suitably qualified people from designated groups have equal employment 



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opportunities and are equitably represented in all occupational categories and levels 

in the workforce of a designated employer."  

Affirmative action in South Africa was introduced to ensure that those formerly 

disadvantaged, also referred to as designated groups in Section 1 of the Employment 

Equity Act No. 55 of 1998 (South African Government 1998), enjoyed the same 

benefits and opportunities guaranteed in the post-apartheid Constitution. On this 

premise, the first democratically elected government, led by the ANC, implemented 

race-based distributive justice, otherwise known as positive discrimination, in 

response to the race-based marginalisation of designated groups. The policy supports 

the aims of the BBBEE Act.  

Consequently, in corporate South Africa, there are some attempts to include black 

population groups into the mainstream corporate economy with the implementation of 

affirmative action. Affirmative action, as defined in the Act, incorporates the aspect of 

“suitably qualified” implying that individuals require a particular level of formalised 

education, skill or exposure to appropriate training to be eligible to be considered for 

an occupation. Requiring that individuals be suitably qualified, would probably be 

rationalised by the need to create efficiency in these processes, which would be 

reasonable if the opportunity to gain the relevant qualifications was freely available. In 

my analysis below the impact of educational opportunities are further explored and 

demonstrates the difficulty in meeting the requirement of “suitably qualified”.   

Comparison of the data between the Statistics SA 1994 October Household Survey 

and the 2014 Living Conditions Survey indicated that that there has been an 

improvement in the proportion of skilled workers in all race groups over the 20-year 

period. The shifts were quite significant among the white labour group with shifts from 



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42% to 61%. The only previously marginalised group that showed a significant 

movement was the Indian population who moved from 25% in 1994 to 51% in 2014. 

The disappointing statistic was among the black African population group with only a 

slight upward movement of 3% towards skilled labour, 6% improvement in semi-skilled 

labour and a decrease of 9% for low-skilled labourers. Further interrogation of the 

statistics per age group reveals that there was a positive shift in all population groups 

towards skilled labour, except for the African youths, which showed a 15% decrease 

(statssa.gov.za) 

When initially reflecting on the numerous definitions and intentions of affirmative 

action, it is difficult not to be optimistic that its implementation will yield positive results 

for the previously disadvantaged groups. However, on closer interrogation it became 

evident that the implementation of race-based distributive justice, has been selectively 

positive for some citizens, but the benefits to the greater majority of the disadvantaged 

communities were limited, as evidenced in the survey quoted above. 

These statistics can be an indicator of two things: (1) Employers have not invested 

sufficiently in creating an environment that assists previously disadvantaged black 

people from emancipating themselves and (2) Citizens are not fully utilising the 

advantages that the affirmative action legislation affords to them. While South African 

employers made some effort to integrate marginalised citizens and comply with the 

law, they have chosen to do so with a one-size fits all approach. Apartheid was not 

implemented in this way; there were vast inconsistencies between the benefits and 

burdens of each race group. It would not be just to assume that all persons from 

marginalised groups had the opportunity to acquire a primary level of skill, neither 

would assuming the converse be just. Therefore, it would have been appropriate for 

employers to take time to establish the level of support that was needed and was 



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appropriate for each of the marginalised groups. Similarly, employees should take the 

time to understand the implications of the affirmative action legislation and the 

advantages it presents to them.  

The implementation of affirmative action to the extent that it benefits the ruling elite is 

contrary to Nozick’s principles of justice. Justice would be served if affirmative action 

were implemented in ways that take into account previous acts of historical injustices 

and in the case of South Africa that would invariably be for the most part the 

marginalised groups of the population. The affirmative action programme is wide and 

seeks to make restitution in many aspects. In what follows I look at the impact of 

affirmative action in the following areas: 

1. The youth considering the impact on their education 

2. From a community perspective related to the creation of an entitlement 

mentality  

3. Unjust enrichment  

4. The impact of affirmative action on the dignity, well-being and self-worth of 

individuals 

 

1. Impact of affirmative action on the education of previously disadvantaged 
youth 

South Africa defines youth as individuals between the ages of 14 and 35 years, and in 

2010, this group comprised 19.1 million individuals. Since 1994, youth development 

has been a priority with various legislative changes, such as the South African Schools 

Act (1996), the Employment of Educators Act (1998) and the establishment of the 

National Youth Development Agency (NYDA) in 2008, to create and promote 

educational and job opportunities, especially for previously disadvantaged youth. 



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Since 1994, school enrolment figures have increased drastically as parents 

acknowledge and appreciate the benefit of education. Between 1975 and 1994, the 

enrolment rates of black South Africans increased by 154%. Despite this increase in 

enrolment, on average, 500, 000 youth drop out of school annually.  

Education analyst Nic Spaull reported that 1, 002, 500 pupils registered for Grade 1 in 

2007, but only 512, 700 (51% of these students) wrote their matric examinations in 

2018. It is difficult to ignore the fact that 49% of these students dropped out from the 

system somewhere along the way. According to the Department of Education, the 

number of students who matriculated between 1995 and 2006 increased among all 

race groups, but the increase among black South African youth has been the lowest 

at just 4%. According to the 2019 Households General Survey, 21.6% of students did 

not attend school due to a lack of money, 22.6% due to poor academic performance, 

8% due to family commitments and 8% felt that education is useless. (Stats SA, 2019). 

These statistics offer a window to dissect the plight of South African youth further. 

Two of the above statistics are discussed: lack of money and poor academic 

performance. There are approximately 25, 000 schools in South Africa. The 

Department of Education declared approximately 10, 200 of these schools as no fee 

schools, after a similar trend in other countries where, “over the past decade, a number 

of developing countries, many of them in sub-Saharan Africa, have eliminated fees 

associated with primary school attendance” (Fiske and Ladd 2011, 66). These schools 

are available in all provinces and accessible to all students who are unable to meet 

the school fee requirements and they seem to offer a lifeline to the 21.6% of students 

who cannot meet the fee requirements. Exercising this option will allow a greater 

number of youth to complete a minimum high school education. However, the 



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affirmative action policies implemented do not prioritise the quality of the education 

being offered at these schools, only their availability.  

The Department of Education classifying schools as no fee schools is seen as a 

positive step in addressing past injustices and positioning them to serve the best 

interests of the disadvantaged communities. South Africa has made numerous inroads 

into offering quality education. In their paper Equity and ‘No Fee’ Schools in South 

Africa: Challenges and Prospects (2012), Yusuf Sayed and Shireen Motala, describe 

these as the introduction of the South African Schools Act, which affords school 

governing bodies authority to act in the best interest of the school; the introduction of 

the equitable share formula, which creates parameters within which provinces must 

determine the value of actual resources spent on each learner; and the National 

Norms and Standards for School Funding, which establishes that 60% of the 

resources should go to 40% of the poorest learners. The mechanisms exist to create 

an environment for meaningful schooling. The schools are available, but the education 

offered, or its quality, does not serve the youth of the country.  

Two aspects that have largely contributed to hindering the progress in education were 

the shortage of suitably qualified teachers and the decisions taken to continually 

reduce the minimum pass mark in schools.  

Having instruction delivered by well-trained, experienced teachers in schools that are 

well equipped with the required books and supplies would contribute to improving the 

level and quality of education and would, in turn, contribute to the upliftment of 

disadvantaged youth by providing them with quality skills and requisite knowledge to 

excel in society. Furthermore, suitably qualified and experienced teachers would also 

be trained to deal with the socio-economic challenges of these youth and would be 



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able to keep them interested in school. The ability to impress on the youth the 

importance of an education and the consequential positive impact thereof on them 

becoming a contributing member of society and the value added to their own life is 

essential for an educator in a developing country. Between 1994 and 2000, a decision 

was made to close down many teacher training colleges, which contributed to the 

shortage of qualified teachers. This invariably resulted in the student-teacher ratios in 

the schools being disproportionate, which further compromised the teachers’ ability to 

deliver quality education.  

In an effort to compensate for the divide that the apartheid education system created 

between the races, the Department of Education reduced the minimum pass mark to 

allow a greater number of previously disadvantaged youth to progress through the 

system. Pushing students through the system may seem like a good solution to 

increase the number of school leavers, but the long-term effects can be detrimental to 

both the students/youth and the country. Having a poor quality of education invariably 

results in job prospects being reduced and significantly affecting the value of their 

lives. 

If the intention of the ruling party was to uplift previously disadvantaged communities, 

making a concerted effort to ensure that the educational foundation is valuable would 

be an appropriate point to start. With the initial implementation of affirmative action, 

the overhauling of the education system should have been prioritised and it would 

have provided a platform to significantly increase the quality and not just the number 

of school graduates, and, consequently, contribute to increasing the education and 

literacy levels of the country.  



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An added challenge to the no fee schools is their accessibility and proximity to the 

mainstream economic hubs in the country. Many of the no fee schools are located in 

areas that were formerly part of the homelands to which marginalised groups, 

especially blacks, were relocated. The location of these schools, compounded by the 

lack of quality of education and accessibility of amenities, does not make them 

attractive options to the youth. Further compounding the disadvantage of black youth 

is the poor state of these schools they are forced to attend. The schools lack proper 

infrastructure, construction quality is low, or they are in a state of disrepair or neglect. 

This type of environment is not conducive to learning and is not attractive to the youth, 

nor does it inspire a sense of learning in them. “If disadvantaged groups are to be 

uplifted, the government must place its primary focus on the quality and accessibility 

of education. South Africa’s schools are in desperate need of improvement, especially 

among the black population. Evaluations conducted by the Education Department 

exposed a striking disparity between Black and White educational institutions” 

(Kovacevic 2007, 6).  Affirmative action is promoted as a mechanism that brings about 

equality and provides restitution for past harms; more attention should be paid to 

actually achieving equality. The hope that affirmative action promised has not 

sufficiently materialised in upliftment or a better life. It is not difficult to see why black 

youth are disillusioned and have, to a large extent, become complacent within the 

system.  

2. Entitlement mentality 

Economic transformation and inclusivity are two of the critical goals of affirmative 

action. A major concern with the implementation of affirmative action has been voiced 

in the foreword of the Millennium Development Goals Report, “We are confident that 

we have dealt effectively with the goal to half extreme poverty but we remain deeply 



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concerned that relative inequality remains high, as measured by the Gini coefficient. 

This is so in part because of the high unemployment rate and the low labour force 

participation rate in our country” (Stats SA 2013).  

South Africa has one of the highest unemployment rates in the world, which currently 

stands at 34.9% (Stats SA 2021). The unavailability and inaccessibility of formal 

employment are some of the contributors to the high unemployment rates, but the low 

labour force participation rate is also a great cause for concern. Entrepreneurship is a 

key component of thriving economies and is especially important in emerging or 

developing economies like South Africa.  

In many parts of the developing world, citizens make an effort to help themselves. 

Sanjeev Sanyal, an economist and writer, referring to the Academy Award-winning 

movie that exposed the gritty underbelly of the slum Dharavi in India says, “If one looks 

past the open drains and plastic sheets, one will see that slums are ecosystems 

buzzing with activity. Thousands of small businesses thrive in Dharavi, creating an 

informal economy with an annual turnover of $1 billion by some estimates.” (Chandran, 

2016). 

The South African economy experienced a different reality where previously 

marginalised citizens did very little to help themselves. This could be partly attributed 

to the tone set by the ruling party, who have largely benefitted from the affirmative 

action policies. This created an expectation within the workforce that they too should 

benefit, because affirmative action was meant to benefit those who were marginalised 

by apartheid and, by definition, this included all black citizens – there were no other 

qualifying criteria. On this basis, many sat back and wait for their turn.  



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The Reconstruction and Development Programme (RDP) was one of the first 

affirmative action policies implemented. It was well intentioned with various goals, 

including providing 10 years of free compulsory education for all, building at least 

1 million low-cost houses over the following five years and increasing accessibility to 

electricity of 2.5 million households by the year 2000. The manner in which these goals 

were set out created the expectation that they were achievable and would be met, and 

that those who have been earmarked to receive these houses should have the 

expectation that they would receive a house. These “false promises” bred a society 

that waited to receive and held to account those who made these promises.  

The reality of the situation was that the RDP was not well executed and with majority 

of the goals not met. Of the R2.5 billion 1994-94 budget, R1.7 billion had been unspent 

and carried over to the next year. When the democratically elected government 

realised that for RDP to be achieved, it would require the collaboration and cooperation 

of social organisations and the private sector, would result in duplication of functions 

within existing government structures and would entail extremely costly 

implementation, the RDP office was closed down.  

An additional mechanism of redress was the Growth, Employment and Redistribution 

Strategy (GEAR) of 2006. Ratuva (2013, 227) quotes Cargill, “GEAR aimed to create 

almost 1.5 million jobs over 5 years, as well as to promote competitiveness through 

trade liberalisation and productivity measures, to support direct investment and export 

orientation, to enhance the social and economic infrastructure and export orientation, 

to enhance the social and economic infrastructure through partnership with the private 

sector and improved flexibility in the labour market.” GEAR failed to meet its targets of 

job creation, which further stifled the economy.  



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An economy that is not characterised by growth and opportunity is not able to 

encourage or support entrepreneurial activities, which contributes to the complacency 

and lethargy of those deserving of retribution. The previously disadvantaged would 

require a catalyst to encourage or spur them into entrepreneurial activities. An 

environment ripe with opportunity would be the catalyst required. Both RDP and GEAR 

would have served as catalysts, had they been implemented adequately. But, instead, 

both programmes gave rays of hope to those who were destined to benefit, without 

presenting them with concrete opportunities.  

Marginalised groups who would have liked to pursue entrepreneurial avenues are 

further discouraged from doing so due to the lack of accessibility to funding and socio-

economic assistance. The Small Business Development Agency (SEDA) was 

established to provide funding to emerging businesses. The SEDA had numerous 

schemes that supported specific business types with specific requirements for 

qualification, which included aspects such as the entity must have been operational 

for a minimum of 12 months, must be registered with the particular bodies, the CIPC 

and others. The segment of the population most severely affected by apartheid did not 

have the means to establish and run an enterprise for 12 months before qualifying for 

assistance from SEDA; many would be hindered by the red tape around these 

processes because they did not understand them and were not able to comply with 

the requirements. The shortcoming in the government’s efforts to encourage 

entrepreneurial spirit was the lack of socialisation of these processes and adequate 

support mechanisms to ensure that processes were used successfully. The efforts that 

have been made to assist previously disadvantaged citizens to lift themselves out of 

poverty were counter-productive to their purpose, causing many to become 

disillusioned and develop a mind-set that inhibits their progress.  



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It is the duty of a ruling party to live up to the promises they made to the people of 

South Africa during their election campaigns. The falsehoods fed to the citizens during 

the election did not materialise. Instead, the ruling party made a concerted effort to 

implemented affirmative action in a manner that primarily benefitted those who were 

politically connected, except for a few tokens of assistance being rendered to some 

communities or persons as a means of diversion from the widespread self-interest that 

the members of the ruling elite engaged in. Affirmative action in this form effectively 

shut out the majority of the population, those mostly affected by apartheid and living 

in abject poverty.  

When the first democratic election was held and won by the ANC in 1994, it was on 

the back foot of oppression and hopelessness. The election represented hope and a 

new beginning. Sadie, quoted by Ratuva (2013, 219) says this of President Nelson 

Mandela who expressed the following sentiment, “the whole social programme of the 

new democratic government which we envisage for South Africa will be one of 

affirmative action.” Similar utterances graces the pages of the history books written by 

other ANC stalwarts. Armed with these types of assurances, the promises of RDP and 

GEAR, the previously disadvantaged had no reason not to be invested in this 

expectation and await the arrival of affirmative action programmes that would uplift 

and improve their lives.  

Through the Black Economic Empowerment (BEE) programme, a number of black 

middle-class citizens were elevated to top business and political positions. “Ultimately, 

affirmative action and black economic empowerment only added a few ‘upper and 

middle classed’ Africans into the league of rich South Africans” (Matambo and Ani 

2015, 280). Selective benefit of government policy also created a new divide and gave 

rise to the new black middle class. The poor witnessed the extent to which the lives of 



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the ruling elite changed and cannot be persecuted for believing that they too would 

benefit from policies that were designed for the greater good of all disadvantaged 

people. This mind-set has given rise to an entitlement community of “let’s wait to 

receive what the government has promised.”  

The inability of the government to fulfil its promises and the people’s expectation that 

the promises they made should be fulfilled created a tug-of-war scenario. 

Consequently, communities embarked on frequent service delivery protests when 

their expectations were not met. Some of these protests might have some merit, 

especially when they were related to basic services, but many of these protests were 

marred by the violent, destructive behaviour, which deflected from the importance of 

the matters they were raising. The government’s response to the service delivery 

protests was intermittent, with temporary relief offered to the communities on the 

issues they raised. These communities lived in a cycle of needs not being satisfied – 

protests – temporary relief and back to needs not being satisfied. This is a very basic 

but accurate representation of the situation that the poorest of South African’s found 

themselves in. It is the hopelessness that these citizens were enveloped in that 

consumed their everyday lives, which was an unintended consequence of the 

affirmative action programme.  

3. Unjust enrichment 

The ANC was duly elected and the legitimacy of them governing the country cannot 

be disputed. The ANC government can be commended for some the efforts they have 

made in post-apartheid reconstruction and reconciliation. They have been able to 

make a few formidable strides in bettering the lives of some citizens with the 

formulation of the South African Constitution and other laws that were created 

especially for this purpose. According to Chris Nissen, Western Cape Commissioner 



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for the South African Human Rights Commission, “South Africa has the best 

Constitution in the world. It is hailed by many and used as an example for many other 

countries. It is a model for law and constitutional experts. It seeks to establish a society 

based on democratic values, social justice and fundamental human rights.” (Business 

Media Mags). 

Before democracy, all black, Indian and coloured race groups had been collectively 

classified as the disadvantaged, but the extent to which these race groups had been 

marginalised differed. Indians had been marginalised to a lesser extent, such that the 

development of the Indian merchant class had been possible, but this cannot be 

compared to the black trading class who had been subject to far greater levels of 

oppression and discrimination. The abolishment of apartheid led to many legislative 

and socio-economic changes in the country. The lives of all citizens changed, with 

previously disadvantaged groups having the freedom to engage in many activities that 

had previously been prohibited or restricted to them. This included freedom of 

movement, expansion of social domains and increased access to economic 

opportunities. Increased economic activity by previously disadvantaged groups 

contributed to social segmentation and gave rise to different social classes.  

In 2017, the National Income Dynamics Study (NICS) determined that South Africa 

had five social classes: the chronically poor, the transient poor, the vulnerable middle 

class, the stable middle class and the elite. According to an October 2017 Business 

Tech article entitled South Africa’s middle class is smaller than we think quoted that 

Stats SA determines 55% of the population as being poor and unable to meet their 

basic needs. Considering these statistics and the expectation that affirmative action 

was intended to uplift disadvantaged communities, one would expect the predicament 

of the disadvantaged to have changed significantly. (Business Tech. 2017). But it has 



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not for many. The question that emerges is “Who is benefiting from the reform in the 

country?” 

The answer, according to Tom Lodge (2022, 22), is “those people who constitute the 

‘governing class: presidents, premiers, members of the cabinet and executive 

(provincial) councils as well as the heads of civil service departments.” These also 

include heads of parastatals as included by Southall (2004), “As well as being the key 

political decision-makers, this small, relatively tight group is bonded together by an 

ideology of public service and, for the majority, by loyalty to the ANC” (Southall 2004, 

532). In Repression and Resistance, Nzimande (1990) refers to this segment of the 

population as the Corporate Black Bourgeoisie “whose rise has been greatly 

supported by BEE and AA initiatives and has given rise to many serial entrepreneurs, 

colloquially known as “tender-entrepreneurs.” ‘Tenderpreneur' is a South 

African colloquialism for a businessperson who uses political contacts to secure 

government procurement contracts.  

The ruling party mostly consisted of individuals who had either returned from exile or 

were imprisoned under apartheid law and did not possess the skill required to run a 

country. The only example they had to follow was that of the previous government. 

During apartheid, the landscape of the country was that those who ruled, were rich 

and benefitted greatly from the economic and natural resources of the country. The 

newly elected democratic government felt entitled to have the same privilege. The 

righteousness with which they began, which is evident in the Constitution, soon ran 

low when they realised that running a country was difficult and they would need to be 

very deliberate in their efforts to enrich themselves. This was where the entitlement 

mentality originated – it was the turn of the black people to benefit. The affirmative 

action policies crafted and implemented by the new government were more self-



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serving to the political elite than they were to the benefit of the greater disadvantaged 

population. 

Tenderpreneurs do not represent the greater societal complement, especially not 

those most severely impacted by the apartheid, but rather a small complement of well-

connected individuals. The political connections of these individuals provide them with 

a perfect position to capitalise on their relationships with absolute disregard for those 

most in need. “Cronyism” is another term used to describe the act of favouring 

friendships and the politically connected and is widely used in South Africa. 

Numerous allegations of unjust enrichment by virtue of association and friendship with 

political figures were evident in the current landscape, the most famous being the 

Gupta scandal linked to the State Capture scandal. Other allegations made were 

against ministers in healthcare, spouses of public figures and related to involvement 

in corrupt activities pertaining to protective equipment and numerous instances. These 

cases cost the country billions of rands. Others included R246 million spent on former 

President Jacob Zuma’s home in Nkandla, allegations against ANC Secretary-

General, Ace Magashule, relating to the R255 million Free State asbestos scandal, 

R191 million “Blue Lights” scandal allegations against senior police officials, including 

Johannes Phahlane, former acting National Commissioner of the South African Police 

Service (SAPS). 

The policies created for the upliftment and economic inclusion of black people have 

been manipulated to seem to be aligned to BBBEE, for those well connect, influential 

individuals to benefit. The tenders were still awarded to black people and, on face 

value, seemed to be aligned to the purpose of BBBEE however, the exclusion of the 



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majority of the previously disadvantaged citizens highlights the unjust implementation 

of race-based distributive justice practices in South Africa. 

The flaunting and customisation of procurement processes to suit the agenda of the 

politically connected contributed to the establishment of a new social class, the “black 

diamonds”. These members of society were those who have benefitted largely via 

collusive practices related to state contracts. “Neocosmos talks of the ‘black diamond’ 

as a newly favoured black cabal whose new-found wealth is not particularly geared 

towards national accumulation and development but primarily towards short-term, 

quick profits in a country where estimates put the poor at half the total population” 

(Matambo and Ani 2015, 274).  

There are numerous examples, some detailed above, that give truth to this statement, 

State Capture being the most significant one. At a presentation at the University of 

Cape Town on 11 September 2017, former Finance Minister Pravin Gordhan 

estimated the cost of State Capture at 250 billion rand. The significance of this figure 

becomes apparent when you consider that the 2021/22 budget for the health was 

R62.5 billion, education R27 billion and housing R36.7 billion (National Treasury 

2021). State Capture cost the South African people countless opportunities for quality 

education, credible healthcare and millions of housing opportunities. It also contributed 

to the rich getting richer and the poor getting poorer and being even more 

disadvantaged. The legislative parameters recognise that blacks, Indians and 

coloureds were treated unfairly during the apartheid era and therefore (and as will be 

recommended by Nozick’s principles of justice) owed a debt of restitution to those who 

have been unjustly treated. However, the application of the policies were far different 

and the restitution mechanisms, such as affirmative action, favoured the black middle 

class, tenderpreneurs and the “black diamonds”. Southall (2004) quotes Odendaal, 



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“who depicts the me