Friday, August 22, 2003


by Francisco Khoza
and Tembeka Ngcukaitobi(Write in theirpersonal capacity)

Delivering the Bram Fischer memorial lecture in 2000, the present Chief Justice of South Africa, Arthur Chaskalson said:

’Too many of us are concerned about what we can get from the new society, too few with what is needed for the realisation of the goals of the constitution. What is lacking is the energy, the commitment and the sense of community that was harnessed in the struggle for freedom.’
In the recent past we have read with interest the contributions to the debate on Black Economic Empowerment ("BEE"). We have been concerned that the debate has narrowly focused on issues such as acquisition of equity in companies and the concern that BEE while beginning to bear some fruits, is creating a so-called ’black elite’. There also seems to be a growing suspicion of the motives of the different players, who should be pulling together if BEE is going to achieve the objective of fundamentally transforming the South African economy. When the role players in BEE start questioning each other’s morality to speak on BEE, it becomes imperative that we pursue a value-driven BEE project. The central source of the values that must underpin BEE is the Constitution of South Africa.
The achievement of equality is without doubt an indispensable element of our constitutional democracy. Its importance is underscored by our immoral past during which unequal treatment of human beings based on race and gender was the order of the day. The achievement of equality invariably requires a fundamental reconstruction of our society.
The Constitution mandates the State to take measures to eliminate unfair discrimination and advance persons who were disadvantaged by unfair discrimination. We would venture to suggest that the Constitution also requires private individuals to take these measures.
BEE is one of the measures which the Constitution expressly mandates the State to take for the progressive realisation of equality.
The Constitution envisages the attainment of a society based on the values of human dignity, equality and freedom. It also creates the pillars for a more inclusive and equitable economy. These are established through various sections in the Bill of Rights including section 9: the equality clause; section 22: Freedom of trade, occupation and profession; and section 25: the right to property and the circumstances under which the State may expropriate private property.
It should be accepted, in our view, that the primary beneficiaries of BEE will be the educated and those who live in urban areas. However, in the same vein we should ensure that equal participation in the economy is extended to the poor and the vulnerable groups in society. These include the rural poor, the youth and persons with disabilities. This concern for the poor should motivate us to think creatively about new ways to ensure broader economic empowerment. In short, we should be thinking about measures to "enlarge the cake". One of the areas which has not received prominence in BEE parlance is land reform and redistribution. It is time that attention be given to land reform as an important vehicle for BEE. It is obviously the state that is at the forefront of land reform and redistribution. However, private land owners should also play their part to facilitate land reform.
The state will undoubtedly continue to play a major role in BEE for many years to come. It is in this context that one should also see the process of restructuring of state assets and procurement of state services as an attempt to use the vast amounts of wealth which the state administers for the benefit of all South Africans. In this process the state and the beneficiaries of BEE must be mindful of the values enshrined in the Constitution.
In creating economic opportunities for black people, the State should be transparent and fair. This ensures that the BEE is not shrouded in secrecy, but is open to public scrutiny. The Constitution requires that public resources be distributed in a fair and transparent manner. Our politicians and public officials should act honestly and in good faith in order to maintain public trust and confidence.
We must accept that all of us should play a part in giving effect to the objects of BEE. In doing this we will all have to learn from one another. As we debate on how best to carry the objects of BEE, it is crucial that we regain the energy and the "sense of community" that made it possible to defeat apartheid. It is important that we do not lose sight of the vision that the Constitution seeks to achieve: a society based on democratic values, social justice and fundamental human rights.