16 de Febrero, 2016
Noticias /
Escrito por NCID


The Speaker of the National Assembly, Ms. Baleka Mbete, announced on January 19 the establishing of a panel to review the effects of the laws adopted by the Parliament since the end of apartheid and the establishment of the majority rule in 1994. [[1]] The panel commits to work through public consultations and other forms of open participation, and it expects to submit the final report in 12 months. It is funded by the United Nations Development Programme (UNDP) and has 17 members, whose chair is former President Kgalema Motlanthe. Although the Parliament of South Africa has enacted more than 1,000 laws since 1994, Ms. Mbete clarified that the panel is not going to review all of them, but only those related to four critical areas:


1) Poverty, unemployment and inequality

The percentage of South Africa’s population living below poverty line was 35.9% in 2012 [[2]] while 31.3% in 2009. [[3]] This means that, even though the country has experimented a strong to moderate economic growth—from 3.2% in 2011 to 1.4% in 2016 according to the World Bank’s forecast [[4]]—the creation of wealth is not reaching a big part of the population. The Gini coefficient, a measure that aims at representing a country’s income distribution, was of 59.3 in 1994 and 62.5 in 2013 [[5]] thus becoming the 4th most unequal country in the world. [[6]]

The panel will need to address the root causes of this almost structural inequality, which seems to lie in the difference of income inside the black population, depending on whether they are employed or not. [[7]] While skilled black South Africans have entered the formal economy, the unskilled or semi-skilled ‘nearly have the highest unemployment numbers in the world.’ [[8]] The global unemployment rate is currently above 25%, and it has never gone below 24% in the last three years. [[9]] This rate is considerably higher in young population—almost 40% among population aged 25-34 and more than 60% among population aged 15-24. [[10]]

The exact way to address “the greatest problem of South Africa” [[11]] remains unknown. The keystone of the post-apartheid South Africa’s labor system is the Labor Relations Act (LRA), promulgated in 1995 and amended several times later on. [[12]] Its provisions, however, mainly refer to the relationship between the employer and the employee—it does not contain specific regulations either to reduce unemployment or to create new opportunities. [[13]] In this sense, the Employment Equity Act (1998) deals with equality and discrimination in the workplace in a bid to eliminate the barriers from which vulnerable groups suffer in this area. [[14]] The government has also set mechanisms other than laws in order to spur job creation and reduce rampant unemployment. For instance, in 1996 the Growth, Employment and Redistribution started its five year implementation period, with moderate final results, [[15]] or the Black Economic Empowerment, aiming at the skill development of vulnerable groups and highly criticized by important media. [[16]] This is why the panel could take governmental plans into account as well, since they represent an important part of the measures adopted to address poverty, unemployment and inequality.


2) Creation and equitable distribution of wealth

While GDP grew more than 3% in 2010 and 2011, the World Bank indicated that the current forecast shows a 1.4% GDP growth in 2016 and 1.6% in 2017, [[17]] thus downgrading the country’s expectations. This means that the panel will need to review the regulation that targets the country’s production model, either directly or indirectly. A big part of the creation of wealth usually relies on private sector. The more companies succeed, the more jobs will be created and the more people will receive revenues—then there will be a better distribution of wealth.

South Africa is ranked #73 in the World Bank’s Doing business report. [[18]] Moreover, the 2016 Index of Economic Freedom places South Africa among the moderately free countries, in the 80th position. [[19]] The country fails to guarantee the rule of law to an acceptable extent—especially in property rights—and is particularly hit by corruption. [[20]] In addition, it only scores 45/100 in the field of investment freedom, [[21]] meaning that investors cannot move their resources as they choose, but they find a large variety of restrictions in doing so. All these factors substantially alter business development and, as a result, they hinder wealth creation in the whole country. Taking that into account, the panel may focus on the laws that foster economic growth, both conditioning companies’ activity and creating the proper conditions for these companies to flourish—reinforcing property rights, tackling corruption and easing capital flows.


3) Land reform, restitution, redistribution and security of tenure

Land reform has been—and is still—one of the greatest challenges of the country since the end of apartheid. In 1994, white people owned 87% of the land, while blacks had only the remaining 13%. [[22]] This is why the Government pledged to distribute one third of the land back to people by 2014, exactly 20 years after the establishment of the democratic rule. [[23]] Nevertheless, all the attempts failed to reach the proposed goal—the reforms have only transferred 7.5% of the formerly white-owned land. [[24]]

The panel will certainly review the Land Reform Act (1996), the Extension of Security of Tenure Act, also known as ESTA (1997), the Communal Land Right Act, also known as CLARA (2004), and the Restitution of Land Rights Amendment Bill (2014). The reviewers will consider the three different pillars of the land policy: reform, restitution and redistribution, [[25]] and will also analyze the influence that one of them may exert onto the others. For instance, President Zuma recently raised the issue of land seizure without compensation in the interest of a more equitable redistribution. As a result, white commercial farmers feel insecure and do not make the investments that their lands really need. [[26]] Last but not least, the panelists will assess the impact that such measures have had in the different territories—they may conclude that region-tailored solutions are critical in the future of land policies in South Africa.


4) Nation-building and social cohesion

The Government of South Africa defines social cohesion as the “degree of social integration and inclusion in communities and society at large, and the extent to which mutual solidarity finds expression among individuals and communities.” [[27]] The concept of nation-building is even more complex to define, and could be summarized as different cultures coming together under the umbrella of an only State to which all have the sense of belonging. [[28]] These two notions are very large and it is difficult to assess progress in each of them. In the case of South Africa, it is critical that the difference among languages, cultures, ethnic groups, social traditions, etc. do not constitute an obstacle to nation-building but precisely become the tool through which this nation-building is shaped. [[29]]

South Africa has a large variety of ethnic groups, languages and religions. English is, for example, a minority language in terms of number of people who regularly speak it—only 9.6%. [[30]] Also, 36.6% of the population is Protestant (Zionists, Pentecostal, Methodists, Dutch and Anglican), 7.1% is Catholic, 1.5% is Muslim, 36.0% belongs to other Christian denominations and 15.1% declare to not have a religion. [[31]] Hence, laws need to make sure that all citizens are integrated into the same nation-building process, regardless their race, ethnic group, language or religion.

The Government has already taken some initiatives in this sense. For example, in July 2014, they decided to spend 34 million Rand in order to both set the national flag in all schools across the country and teach everyone to sing the National Anthem. [[32]] But beyond these initiatives, the review panel will notice that laws are probably the less important matter in this process, since self-identification with a national reality comes with an integration process that goes far beyond the laws passed by a parliament. Even so, a first step will be to review the Constitution and its seventeen amendments—the last one in 2013—in order to determine whether it includes all the different realities of the country as equally South African. Article 9 actually enshrines the principle of equality of all citizens, and article 6 recognizes a wide array of official languages—up to eleven—and encourages the State to take measures to ensure that no language is discriminated. [[33]]


It is a positive sign that nobody questioned any of the members of the panel. However, there have been complaints according to which the mandate of the panel would be too vague. [[34]] Apparently, the Parliament has had numerous sessions on those very points for years. Mr. Dennis Bloem, the spokeperson of Congress of the People, an opposition party, suggested that Parliament should instead target very specific laws [[35]] that are well-known by MPs as problematic in those four fields. However, Ms. Olive Shisana, one of the members of the panel, specified that its work is different from the MPs [[36]] since it is independent and does not have a political nature. Mr. Shadrack Gutto, an expert in Constitutional Law, insisted in the need to concretize [[37]] what is exactly being reviewed. It is obvious that the work would not end in twelve months. Once the report is released, it will be the beginning of an action plan in order to repair those mechanisms that have not been effective enough to guarantee South Africans’ full realization of their economic, social and cultural rights.

Picture link by Flickr User GovernmentZA
[[1]] Parliament of the Republic of South Africa, Advisory Panel to look at acceleration of change in South Africa (Jan. 20, 2016), available at (last visited on Feb. 9, 2016).
[[2]] CIA World Factbook, South Africa, available at (last visited on Feb. 5, 2016).
[[3]] Index Mundi, South Africa Population below poverty line, Source: CIA World Factbook (2009), available at (last visited on Feb. 5, 2016).
[[4]] The World Bank, Data, South Africa, Global Economic Prospects, Forecasts, Annual GDP Growth (%), available at (last visited on Feb. 5, 2016)
[[5]] CIA World Factbook, Supra note 2, available at (last visited on Feb. 5, 2016).
[[6]] CIA World Factbook, Country Comparison, Distribution of Family Income, GINI Index, available at (last visited on Feb. 5, 2016).
[[7]] Jeffrey Herbst & Greg Mills, How South Africa Works 12 (2015).
[[8]] Mike Schussler, The 11th UASA Employment Report, available at (last visited on Feb. 5, 2016).
[[9]] Trading Economics, South Africa, Unemployment Rate, available at (last visited on Feb. 5, 2016).
[[10]] SAIRR, South Africa Survey 2014/2015 at 261.
[[11]] Jeffrey Herbst & Greg Mills, Supra note 7, at 8.
[[12]] Department of Labour, Republic of South Africa, Amended Labour Relations Act (No. 66 of 1995), available at (last visited on Feb. 5, 2016).
[[13]] International Labor Organization, Information Resources, National Labor Law Profiles, South Africa, available at (last visited on Feb. 9, 2016).
[[14]] Id.
[[15]] Encyclopaedia Britannica, South Africa, Economy, available at (last visited on Feb. 9, 2016). 
[[16]] Fool’s gold: black economic empowerment has not worked well. Nor will it end soon, The Economist, Apr. 27, 2013.
[[17]] The World Bank, supra note 4, available at (last visited on Feb. 9, 2016).
[[18]] Doing Business 2016: Measuring Regulatory Equality and Efficiency, World Bank Group (13th ed.) 5
[[19]] 2016 Index of Economic Freedom, Heritage Foundation, available at (last visited on Feb. 9, 2016).
[[20]] Id
[[21]] Id
[[22]] The Distribution of Land in South Africa: An Overview, Fact Check No. 1, Institute for Poverty, Land and Agrarian Studies, University of the Western Cape, available at (last visited on Feb. 11, 2016).
[[23]] Timeline of Land Dispossession and Restitution in South Africa 1995-2013, South African History Online, available at (last visited on Feb. 11, 2016). 
[[24]] The Distribution of Land in South Africa: An Overview, Supra note 22, available at (last visited on Feb. 11, 2016).
[[25]] Moseley, W.G. and B. McCusker, Fighting Fire with a Broken Tea Cup: A Comparative Analysis of South Africa's Land Redistribution Program, Geographical Review, No. 98(3) at 322-338.
[[26]] Land Reform Ahead of the Election Campaign, Political Analysis South Africa (Jan. 12, 2016), available at (last visited on Feb. 12, 2016).
[[27]] Department of Arts and Culture, Republic of South Africa, What is Social Cohesion and Nation-Building?, available at  (last visited on Feb. 12, 2016).
[[28]] Id.
[[29]] Id.
[[30]] CIA World Factbook, Supra note 2, available at (last visited on Feb. 5, 2016).
[[31]] Id.
[[32]] Government launches 34 million Rand patriotism drive, News24 (July 17, 2014), available at (last visited on Feb. 12, 2016).
[[33]] Constitution of the Republic of South Africa (1996), available at (last visited on Feb. 12, 2016).
[[34]] Greg Nicolson, The law review panel: Acknowledging despondency, avoiding accountability, Daily Maverick (Jan. 21, 2016) available at (last visited on Feb. 12, 2016).
[[35]] Id.
[[36]] Bianca Capazorio, Kingdom Mabuza and Olebogeng Molatlhwa, Rainbow Nation In The Dock, The Times (Jan. 20, 2016), available at (last visited on Feb. 12, 2016).
[[37]] Id.